{"id":"alj-H305120-2024-05-02","awcc_number":"H305120","decision_date":"2024-05-02","opinion_type":"alj","claimant_name":"Melvin Ruiz","employer_name":"Pedro Lopez","title":"RUIZ VS. PEDRO LOPEZ AWCC# H305120 May 2, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Ruiz_Melvin_H305120_20240502.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ruiz_Melvin_H305120_20240502.pdf","text_length":6624,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305120 \n \n \nMELVIN RUIZ, EMPLOYEE CLAIMANT \n \nPEDRO LOPEZ, EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 2, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 2, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  was Commission  Exhibit  1,  forms,  pleadings,  and \ncorrespondence related to this claim, consisting of 18 pages. \n The record reveals the following procedural history: \n The First Reports of Injury or Illness, filed on August 28 and September 8, \n2023, reflect that Claimant purportedly suffered injuries to his leg, knee, and ribs \n\nRUIZ – H305120 \n2 \n \nat work on July 25, 2023.  Per the Forms AR-2 filed on August 29 and September \n6,  2023,  Respondents controverted  the  claim  in  its  entirety—initially  because \nClaimant  purportedly  was  not  an  employee  of  Respondent  Lopez,  and  later \npurportedly because of a lack of medical documentation of an injury. \n On August 11, 2023, through then-counsel Mark Peoples, Claimant filed a \nForm  AR-C,  alleging  that  he  was  entitled  to  the  full  range  of  initial  benefits from \nAffordable Residential Roofing and its insurer for his alleged work-related injuries.  \nIn an amended Form AR-C filed on August 29, 2023, Peoples changed the name \nof the alleged employer to Respondent Lopez.  He took pains to represent that his \nclient  was  not  yet  requesting  a  hearing  on  his  claim.   Respondents’ counsel \nconfirmed to the  Commission  on August  29  and  September  14,  2023,  that his \nclients were controverting the claim in its entirety. \n On December 18,    2023, Peoples moved    to    withdraw    from    his \nrepresentation  of  Claimant.    In  an  Order  entered  on January 9,  2024,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary 28,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[n]o action has been taken since the AR-C was filed in August of \n2023.”  On March 4, 2024, my office wrote Claimant, requesting a response to the \nmotion within 20 days.  This correspondence was sent by both certified and first-\nclass  mail to  the Little  Rock address  for  Claimant  listed  in  the  file  and  on  his \nForms AR-C.   The  certified  letter was  returned  to  the  Commission,  undelivered, \n\nRUIZ – H305120 \n3 \n \non March 29,  2024;  but the  first-class  correspondence  was not returned to  the \nCommission.  However, no response by Claimant to the motion was forthcoming. \n On March 27, 2024, a hearing on Respondents’ motion was scheduled for \nMay  2,  2024, at 9:30 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas  before.  In  this  instance, both the  first-class and  certified letters were \nreturned—on April 1 and 2, 2024, respectively. \n The  hearing  proceeded  as  scheduled on May  2,  2024.    Claimant  failed  to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nRUIZ – H305120 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his amended Form AR-C on August \n29, 2023.  Moreover, he failed to appear on the hearing to argue against dismissal \nof  the  claim,  despite  the  evidence  showing  that  both  he  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus, the evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nRUIZ – H305120 \n5 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305120 MELVIN RUIZ, EMPLOYEE CLAIMANT PEDRO LOPEZ, EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED MAY 2, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2024, in Little Rock, Pulaski County, Arkansas....","fetched_at":"2026-05-19T22:53:43.120Z","links":{"html":"/opinions/alj-H305120-2024-05-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Ruiz_Melvin_H305120_20240502.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}