{"id":"alj-H307355-2024-07-11","awcc_number":"H307355","decision_date":"2024-07-11","opinion_type":"alj","claimant_name":"John Parker","employer_name":null,"title":"PARKER VS. BALDWIN & SHELL CONSTR. CO.AWCC# H307355July 11, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Parker_John_H307355_20240711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Parker_John_H307355_20240711.pdf","text_length":6252,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307355 \n \n \nJOHN G. PARKER, EMPLOYEE CLAIMANT \n \nBALDWIN & SHELL CONSTR. CO., \n EMPLOYER RESPONDENT \n \nOLD REPUBLIC 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 Mr. Eric Newkirk, 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 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 were Commission Exhibit 1 and Respondents’ Exhibit \n1,  forms,  pleadings,  and  correspondence  related  to  this  claim,  consisting  of 16 \nand 13 pages, respectively. \n\nPARKER – H307355 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on November 17,  2023,  reflect \nthat Claimant purportedly suffered an injury to his upper extremity at work on July \n4,  2023.   Per  the  Form  AR-2 that  was  also filed  on November 17,  2023, \nRespondents denied  the  claim,  asserting  that the injury took place at Claimant’s \nhome. \n On November 9, 2023, Claimant filed a Form AR-C, alleging that while his \nalleged  right  arm  injury  occurred  while  he  was  moving  a  tree  branch,  it  was  the \nculmination of an injurious process involving his hanging of solid core doors over \na  period  of  time.  No  hearing  request  accompanied  this  filing.   Respondents’ \ncounsel entered his appearance on May 7, 2024. \n On May 9, 2024, Respondents filed the instant Motion to Dismiss and brief \nin support thereof under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. \n2012),  contending  that no activity has  taken place on the  case  since the  filing  of \nthe  Form  AR-C.  On May  13,  2024, my  office wrote  Claimant,  requesting  a \nresponse  to  the  motion  within 20 days.   This  correspondence  was  sent  by  both \ncertified and first-class mail to the North Little Rock address for Claimant listed in \nthe  file  and  on  his Form  AR-C.   The  certified  letter was  returned  to  the \nCommission,  undelivered, on June 24,  2024;  but the  first-class  correspondence \nwas not returned to the  Commission.  However,  no  response  by  Claimant  to the \nmotion was forthcoming. \n\nPARKER – H307355 \n3 \n \n On June  7,  2024, a hearing on Respondents’ motion was scheduled for \nJuly  11,  2024, at 10:30 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, the  United  States  Postal  Service  could  not  verify \nwhether the certified letter had been claimed.  But as before, the one sent via first \nclass was not 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): \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. \n\nPARKER – H307355 \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). \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 November  9, \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 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\nPARKER – H307355 \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. H307355 JOHN G. PARKER, EMPLOYEE CLAIMANT BALDWIN & SHELL CONSTR. CO., EMPLOYER RESPONDENT OLD REPUBLIC 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, ...","fetched_at":"2026-05-19T22:51:12.056Z","links":{"html":"/opinions/alj-H307355-2024-07-11","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Parker_John_H307355_20240711.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}