{"id":"alj-H305258-2025-05-22","awcc_number":"H305258","decision_date":"2025-05-22","opinion_type":"alj","claimant_name":"Paul Hicks","employer_name":"D B G Arkansas, LLC","title":"HICKS VS. D B G ARKANSAS, LLC AWCC# H305258 May 22, 2025","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:3"],"injury_keywords":["neck","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Hicks_Paul_H305258_20250522.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hicks_Paul_H305258_20250522.pdf","text_length":6250,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305258 \n \nPAUL HICKS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nD B G ARKANSAS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nRETAILERS CASUALTY INS., \nCARRIER                                                  RESPONDENT \n \nSUMMIT CONSULTING, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 22, 2024 \n \nHearing conducted on Tuesday, May  13,  2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant was represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas.  \n \nThe Respondents were represented by Mr. Michael Stiles, Attorney at Law, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This matter comes before the Commission originally for a full hearing on May 13, 2025. \nHowever, the Claimant did not want to go forward with the prosecution of this claim. Respondents \nmade an oral Motion to renew their Motion to Dismiss due to a lack of prosecution. I granted that \nmotion in the presence of the Claimant and his legal counsel. Thus, I converted the full hearing \ninto a Motion to Dismiss hearing. There was no evidence admitted into the record.  Nevertheless, \nI have blue-backed Forms AR-1, AR-2, and Respondents Motion to Dismiss, as discussed infra. \nThe  record  reflects  on August  17,  2023,  a  Form  AR-1 was  filed  with  the  Commission \npurporting that Claimant was moving and flipping a dye press that was between 600-800 pounds \nwhen he injured his neck and back. Also on that same date, a Form AR-2 was filed by Respondents \n\nHICKS, AWCC No. H305258 \n \n2 \n \nneither accepting nor denying compensability. Eventually, the Respondents accepted the claim and \nhave paid benefits. The parties had a prehearing conference on March 12, 2025, wanting to litigate \nissues involving an entitlement to an impairment rating for his spine, permanent partial disability, \nwage loss, and a controverted attorney’s fee. A prehearing order was filed the same day setting a \nfull hearing date for May 13, 2025.  \nClaimant filed a Motion to Dismiss on May 12, 2025, at 4:29pm. I required both parties to \nappear on May 13, 2025, to discuss the motion on the full hearing date. Both parties appeared and \nthe  Claimant  did  not  desire  to  proceed.  I  did  not  agree  to  a  dismissal  of  the  full  hearing. Both \nattorneys had a discussion with each other and Respondent renewed their Motion to Dismiss filed \nJanuary 29, 2025. I granted Respondents’ motion, thereby changing the full hearing into a Motion \nto  Dismiss  hearing.  The  Respondents  made  their  oral  argument  in  favor  of  their  motion.  The \nClaimant offered no rebuttal other than agreement with the motion.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after a thorough consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the May 13, 2025, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ oral Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \n \n\nHICKS, AWCC No. H305258 \n \n3 \n \nDISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice. Both parties were present at the hearing. Thus, I find by the preponderance \nof the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant was present at the full hearing \nand did not want to go forward with the full hearing. The Claimant did not object to Respondents’ \nMotion to Dismiss, rather he agreed with the motion. Therefore, I do find by the preponderance of \nthe evidence that Claimant has failed to prosecute his claim. Thus, Respondents’ Motion to \nDismiss should be granted. \nThat leaves the question of whether the dismissal of the claim should be with or without \nprejudice.   Both  parties  agreed  to  a  dismissal  without  prejudice.  However,  the  Commission \npossesses the authority to dismiss claims with prejudice.  Loosey v. Osmose Wood Preserving Co., \n23  Ark.  App.  137,  744  S.W.2d  402  (1988).   Despite  that,  in  numerous  past  decisions,  this \nCommission  and  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.  See Professional Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982).  \n\nHICKS, AWCC No. H305258 \n \n4 \n \nBased  on  the  above  authorities,  I  find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305258 PAUL HICKS, EMPLOYEE CLAIMANT D B G ARKANSAS, LLC, EMPLOYER RESPONDENT RETAILERS CASUALTY INS., CARRIER RESPONDENT SUMMIT CONSULTING, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 22, 2024 Hearing conducted on Tuesday, May 13, 2025, bef...","fetched_at":"2026-05-19T22:41:11.287Z","links":{"html":"/opinions/alj-H305258-2025-05-22","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Hicks_Paul_H305258_20250522.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}