{"id":"alj-H400134-2024-10-03","awcc_number":"H400134","decision_date":"2024-10-03","opinion_type":"alj","claimant_name":"Benjamin Willis","employer_name":"Little Rock Hauling","title":"WILLIS VS. LITTLE ROCK HAULING AWCC# H400134 October 03, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["neck","back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Willis_Benjamin_H400134_20241003.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Willis_Benjamin_H400134_20241003.pdf","text_length":6963,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400134 \n \n \nBENJAMIN J. WILLIS, EMPLOYEE CLAIMANT \n \nLITTLE ROCK HAULING, \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 3, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 3, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  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 October  3,  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  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \nthirteen (13) and nine (9) pages, respectively. \n\nWILLIS – H400134 \n \n2 \n \n The record shows the following procedural history: \n On January  5,  2024, through  then-counsel Mark  Alan  Peoples, Claimant \nfiled  a  Form  AR-C, requesting  the  full  range  of initial  benefits in  connection  with \ninjuries to his neck, back, and right shoulder that he allegedly suffered at work on \nJuly 10, 2023, when he was riding as a passenger in a work truck.  .  No hearing \nrequest  accompanied this  filing.  Respondents’ counsel entered her appearance \non January 18, 2024, and  confirmed  that the  claim  was  being  controverted  in  its \nentirety. \n On March  6,  2024, Peoples moved  to  withdraw  from  his representation  of \nClaimant.  In an Order entered on April 10, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until July 5, \n2024.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702(a)(4)  (Repl. \n2012) because “Claimant has not sought any type of bona fide hearing before the \nWorkers’ Compensation Commission over the last six  months.”  My  office wrote \nClaimant on July 10,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent by  first  class and  certified mail  to the Jacksonville,  Arkansas \naddress for him listed in the file and on the Form AR-C.  Claimant signed for the \ncertified  letter on  July  19,  2024; and the  first-class  letter  was  not  returned.  \nRegardless, no response from him to the motion was forthcoming.  On August 6, \n\nWILLIS – H400134 \n \n3 \n \n2024, a hearing on the Motion to Dismiss was scheduled for October 3, 2024, at \n9:30 a.m. at the Commission in Little Rock.  The notice was sent to Claimant via \nfirst-class  and  certified  mail to  the  same  address as  before.   In  this  instance, \n“Yolanda Willis” claimed the certified letter on August 8, 2024; and the first-class \nletter was, again, not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \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 over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \n\nWILLIS – H400134 \n \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 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 \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 October 3, 2024, hearing to argue against \nits dismissal)  since the filing  of  his Form  AR-C on January 5,  2024.    Thus,  the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, the argument made under § 11-9-702(a)(4) will not be addressed. \n\nWILLIS – H400134 \n \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 \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits 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. H400134 BENJAMIN J. WILLIS, EMPLOYEE CLAIMANT LITTLE ROCK HAULING, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED OCTOBER 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 3, 2024, in Little Ro...","fetched_at":"2026-05-19T22:47:16.236Z","links":{"html":"/opinions/alj-H400134-2024-10-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/Willis_Benjamin_H400134_20241003.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}