{"id":"alj-H305440-2024-08-16","awcc_number":"H305440","decision_date":"2024-08-16","opinion_type":"alj","claimant_name":"Jorge Puente","employer_name":"Thompson Constr. Grp., Inc","title":"PUENTE VS. THOMPSON CONSTR. GRP., INC. AWCC# H305440 August 16, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Puente_Jorge_H305440_20240816.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Puente_Jorge_H305440_20240816.pdf","text_length":6521,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305440 \n \n \nJORGE A. PUENTE, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTR. GRP., INC., \n EMPLOYER RESPONDENT \n \nAMER. CASUALTY CO. OF READING, PA, \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 16, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on August 16, \n2024, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Jacob Sutter, Attorney at Law, North Little Rock, \nArkansas. \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 August  16,  2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  without  objection  was Commission  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of 14 pages. \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on August 23, 2023, reflects that \nClaimant purportedly suffered an injury to his face at  work  on August 4,  2023, \n\nPUENTE – H305440 \n2 \n \nwhen  he  suffered  a  coughing  fit  that  caused  him  to  faint  and  fall.   Per  the  Form \nAR-2 that was filed on August 28, 2023, Respondents denied the claim, asserting \nthat the alleged injury did  not  occur  in  the  course  and  scope  of Claimant’s \nemployment. \n On August 29, 2023, Claimant filed a Form AR-C, alleging that his alleged \nfacial  injury  happened  after  he  “blacked  out,”  and  requesting  medical  and \ntemporary  total  disability  benefits  along  with  rehabilitation.  No  hearing  request \naccompanied  this  filing.   Respondents’ counsel entered  his  appearance  on \nSeptember  13,  2023;  and  on  September  22,  2023,  he  requested  a  copy  of  the \nclaim file from the Commission.  In a letter to the Commission dated October 31, \n2023,  Respondents  reiterated  that  their  position  on  compensability  had  not \nchanged. \n The  record  reflects  that  no  further  activity  took  place  on  this  claim  until \nMarch  27,  2024, when Respondents  filed  the  instant Motion  to Dismiss under \nAWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012), contending that no \nhearing request had been made in over six months.  The file was assigned to me \nby the Clerk of the Commission on March 27, 2024; and that same day, my office \nwrote  Claimant,  requesting  a  response  to  the  motion  within 20 days.   This \ncorrespondence was sent by both certified and first-class mail to the Pharr, Texas \naddress for Claimant listed in the file and on his Form AR-C.  The certified letter \nwas claimed by Claimant on April 1, 2024; and the first-class correspondence was \n\nPUENTE – H305440 \n3 \n \nnot returned to  the  Commission.  However,  no  response  by  Claimant  to  the \nmotion was forthcoming. \n On May  6,  2024, a hearing on Respondents’ motion was scheduled for \nAugust   16,   2024, at 12:00 p.m.   at   the Craighead   County   Courthouse in \nJonesboro.  The Notice of Hearing was sent to Claimant by certified and first-class \nmail  to  the same address as  before.  In  this  instance, the certified letter was \nreturned to the Commission, unclaimed, on June 4, 2024.  But as before, the one \nsent via first class was not returned. \n The hearing proceeded as scheduled on August 16, 2024.  Claimant failed \nto appear at the hearing.  But Respondents appeared through counsel and argued \nfor dismissal under the provisions cited above. \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 this claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n\nPUENTE – H305440 \n4 \n \n5. The claim is hereby dismissed without prejudice. \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). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on August 29, 2023.  \nMoreover,  he  failed  to  appear at the  hearing  to  argue  against  dismissal  of  the \nclaim, despite the evidence showing that both he and Respondents were provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \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)).  Based  on \n\nPUENTE – H305440 \n5 \n \nthe  foregoing,  I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\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. H305440 JORGE A. PUENTE, EMPLOYEE CLAIMANT THOMPSON CONSTR. GRP., INC., EMPLOYER RESPONDENT AMER. CASUALTY CO. OF READING, PA, CARRIER RESPONDENT OPINION FILED AUGUST 16, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 16, 2024,...","fetched_at":"2026-05-19T22:50:11.028Z","links":{"html":"/opinions/alj-H305440-2024-08-16","pdf":"https://labor.arkansas.gov/wp-content/uploads/Puente_Jorge_H305440_20240816.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}