{"id":"alj-H306658-2024-07-11","awcc_number":"H306658","decision_date":"2024-07-11","opinion_type":"alj","claimant_name":"Kenneth Wrinkle","employer_name":null,"title":"WRINKLE VS. LEXICON INC.AWCC# H306658July 11, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Wrinkle_Kenneth_H306658_20240711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Wrinkle_Kenneth_H306658_20240711.pdf","text_length":6913,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306658 \n \n \nKENNETH WRINKLE, JR., EMPLOYEE CLAIMANT \n \nLEXICON INC., EMPLOYER RESPONDENT \n \nACIG INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 11, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms. Melissa  Wood,  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 July 11, 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 and Respondents’ Exhibit \n1, forms, pleadings, and correspondence related to this claim, consisting of twenty \n(20) and nine (9) pages, respectively. \n\nWRINKLE – H306658 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on October 17, 2023, reflects that \nClaimant purportedly suffered an injury to his  right shoulder at  work  on April 1, \n2023.   Per  the  Form AR-2  filed  on October 18,  2023,  Respondents controverted \nthe claim in its entirety. \n On October 11,   2023,   through   then-counsel Tanner   Thomas   of   the \nRainwater, Holt & Sexton Law Firm, Claimant filed a Form AR-C, alleging that he \nwas entitled to the full range of initial and additional benefits in connection with his \nalleged    shoulder injury.  No    hearing    request    accompanied    this    filing.  \nRespondents’ counsel entered her appearance on October 17, 2023. \n Respondents  on  April  15,  2024,  filed  its  first  Motion  to  Dismiss  in  this \nmatter.    The  file  was  assigned  to  me;  and  on  April  18,  2024,  my  office  sent \ncorrespondence to Claimant’s co-counsel,  Laura  Beth  York  (Thomas  had  since \nleft the firm), asking for a response to the motion within 20 days.  But on April 19, \n2024, Respondents’ counsel wrote me, asking to withdraw the motion.  This was \npermitted.  The file was returned to the Commission’s general files. \n On April  24,  2024, York moved  to  withdraw  from  her representation  of \nClaimant.  In an Order entered on May 14, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On May  15,  2024,  Respondents  filed  the  instant Motion  to Dismiss under \nAWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl.  2012),  contending  that \n“Claimant  has  not  sought  any  type  of  bona  fide  hearing  before  the  Workers’ \n\nWRINKLE – H306658 \n3 \n \nCompensation Commission over the last six months.”  The file was reassigned to \nme; and on May 16, 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 DeWitt address for Claimant listed in the file and on his Form AR-\nC.  The certified letter was returned to the Commission, undelivered, on June 14, \n2024; but the  first-class  correspondence  was not returned to  the  Commission.  \nHowever, no response by Claimant to the motion was forthcoming. \n On June  6,  2024, a hearing on Respondents’ motion was scheduled for \nJuly  11,  2024, at 11:00 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.  Once  again,  the certified letter went  unclaimed,  and  was  returned  to \nthe Commission on July 1, 2024.  But as before, the one sent via first class was \nnot returned. \n The hearing proceeded as scheduled on July 11, 2024.  Claimant failed to \nappear  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): \n\nWRINKLE – H306658 \n4 \n \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. \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 October  11, \n2023.  Moreover, he failed to appear at the hearing to argue against dismissal of \nthe  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.  \nBecause of this finding, it is unnecessary to address the application of § 11-9-702. \n\nWRINKLE – H306658 \n5 \n \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 \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. H306658 KENNETH WRINKLE, JR., EMPLOYEE CLAIMANT LEXICON INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, Pulaski County, A...","fetched_at":"2026-05-19T22:51:16.267Z","links":{"html":"/opinions/alj-H306658-2024-07-11","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Wrinkle_Kenneth_H306658_20240711.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}