{"id":"alj-H307308-2025-01-23","awcc_number":"H307308","decision_date":"2025-01-23","opinion_type":"alj","claimant_name":"Michael Ecton","employer_name":"Apex Tool Group LLC","title":"ECTON VS. APEX TOOL GROUP LLC AWCC# H307308 January 23, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Ecton_Michael_H307308_20250123.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ecton_Michael_H307308_20250123.pdf","text_length":9324,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307308 \n \n \nMICHAEL R. ECTON, EMPLOYEE CLAIMANT \n \nAPEX TOOL GROUP LLC, \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  17,  2025, in \nJonesboro,  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 was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of five pages.  Also, in order to address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 38 \n\nECTON – H307308 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on November 8, 2023, Claimant \npurportedly suffered an  injury  to  his right  index  finger at  work  on November  2, \n2023, while he  was operating  a  brake  press.  According  to the  Form  AR-2 that \nwas filed on November  16,  2021, Respondents controverted the  claim on  the \nbasis that the Claimant allegedly tested positive for the presence of illegal drugs in \nhis system. \n On November   14,   2023, through   then-counsel Mark   Alan   Peoples, \nClaimant filed  a  Form  AR-C.    Therein, he alleged that he was entitled  to the  full \nrange  of  initial  benefits  as  a  result  of the partial amputation  of  his  finger.  \nRespondents emailed  the  Commission  on  November  17,  2023,  reiterating  their \nposition. \n The  file  was  assigned  to  me  on  February  12,  2024,  to  conduct  a  full \nhearing.  Prehearing questionnaires were issued to the parties on that same date.  \nClaimant  filed  a  timely  response  thereto  on  March  3,  2024;  and  Respondents \nfollowed  suit  on  March  4,  2024.    On  June  10,  2024,\n1\n my  office  scheduled  a \n \n \n1\nAs  reflected  in  the  evidentiary  record,  my  office  mis-diaried  this  matter.  \nThe prehearing telephone conference was promptly scheduled after this oversight \nwas brought to the attention of my office by Claimant’s attorney. \n\nECTON – H307308 \n \n3 \n \nprehearing telephone conference for July 1, 2024.  At that conference, a hearing \nwas  scheduled  for  September  20,  2024,  in  Jonesboro concerning  the  following \nissues: \n1. Whether  Claimant sustained  a  compensable  injury  to  his  right  first \nfinger by specific incident. \n2. Whether Claimant is entitled to reasonable and necessary treatment \nof his alleged compensable injury. \n3. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits \nfrom November 3, 2023, to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever,  on  August  17,  2024,  Peoples  emailed  my  office:    “Claimant  hereby \nwithdraws  his  hearing  request.    Please  cancel  the  scheduled  hearing  and  return \nthe claim to general files.”  On August 19, 2024, this request was granted. \n However,  while  the  file  was  still  in  my  office, on  August  20,  2024, People \nmoved to withdraw from the case.  Claimant was sent a letter that same day via \ncertified  and  first-class  mail letter  to  the  Jonesboro  address  of  Claimant  listed  in \nthe  file  and  his  Form  AR-C,  requesting  that  he  respond to  the  motion within  20 \ndays.  However,  while  the  certified  letter  was  returned  to  the  Commission, \nunclaimed, on September 17, 2024, the first-class letter was not.  Claimant did not \nrespond to the letter to object to Peoples’s withdrawal, so I entered  an  Order  on \nSeptember 18, 2024, granting the motion under AWCC Advisory 2003-2. \n\nECTON – H307308 \n \n4 \n \n On October  4,  2024, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13.    My  office wrote  Claimant on \nOctober 9, 2024, asking  for  a  response  to  the motion within 20 days.   The  letter \nwas  sent  by  first  class and  certified mail  to the same  Jonesboro address of \nClaimant as before.  While the United States Postal Service was unable to verify \nwhether Claimant claimed the   certified   letter, the   first-class   letter   was   not \nreturned.  Regardless, no response from Claimant to the motion was forthcoming.  \nOn October  30,  2024,  a  hearing  on  the Motion to Dismiss was  scheduled for \nDecember  20,  2023, at 10:30 a.m.  at  the Craighead County  Courthouse  in \nJonesboro.  On December 5, 2024, the hearing was re-set for January 17, 2025, \nat  12:00  p.m.   The Notice of  Hearing was  sent  to  Claimant  via  first-class  and \ncertified mail to the same address as before.  Once again, the certified letter was \nreturned  to  the  Commission  unclaimed,  on  January  7,  2025; but the first-class \nletter was not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n17,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \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 \n\nECTON – H307308 \n \n5 \n \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 matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \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 As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nECTON – H307308 \n \n6 \n \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the January 17, 2024, hearing to argue against \nits dismissal)  since the withdrawal  of  his  hearing  request on August  17,  2024.  \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 \nfind  that  the  dismissal  of  this  claim  should 1be  and  hereby  is  entered without \nprejudice.\n2\n \n \n \n2\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). \n\nECTON – H307308 \n \n7 \n \nIV.  CONCLUSION \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307308 MICHAEL R. ECTON, EMPLOYEE CLAIMANT APEX TOOL GROUP LLC, EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in Jonesboro, Craighead Co...","fetched_at":"2026-05-19T22:44:38.739Z","links":{"html":"/opinions/alj-H307308-2025-01-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Ecton_Michael_H307308_20250123.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}