{"id":"alj-H400361-2025-02-12","awcc_number":"H400361","decision_date":"2025-02-12","opinion_type":"alj","claimant_name":"Alexia Sandidge","employer_name":"Wendy’s Old Fashioned Hamburgers","title":"SANDIDGE VS. WENDY’S OLD FASHIONED HAMBURGERS AWCC# H400361 February 12, 2025","outcome":"dismissed","outcome_keywords":["dismissed:6"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SANDIDGE_ALEXIA_H400361_20250212.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDIDGE_ALEXIA_H400361_20250212.pdf","text_length":8566,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400361 \n \n \nALEXIA SANDIDGE, EMPLOYEE CLAIMANT \n \nWENDY’S OLD FASHIONED HAMBURGERS, \nEMPLOYER RESPONDENT \n \nTRAVELERS CASUALTY INS. CO. OF AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 6, 2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, 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 February  6,  2025, 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.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(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 17 \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nSANDIDGE – H400361 \n \n2 \n \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 February 1, 2024, Claimant \npurportedly suffered injuries at  work  on November  30,  2023,  when  she  slipped \nand  fell  onto  a  freshly-mopped  floor.  According  to the  Form  AR-2 that  was also \nfiled on February 1, 2024, Respondents controverted the claim on the basis of the \nalleged lack of objective medical findings of an injury. \n On January 18, 2024, through then-counsel Wesley Cottrell, Claimant filed \na Form AR-C.  Therein, she alleged that she was entitled to the full range of initial \nand additional benefits as a result of injuries to her “shoulders, back, and body as \na whole” that she purportedly sustained in the fall.  Accompanying this form was a \ncompleted   pre-hearing   questionnaire.\n1\n  Respondents’  counsel entered   her \nappearance  before the  Commission by  way  of  a  letter  received on February  7, \n2024.  In that same correspondence, she represented that her clients’ position on \nthe claim had not changed. \n On April  9,  2024, Cottrell moved  for  permission  from  the  Commission  to \nwithdraw  from  his  representation  of  Claimant.    In  an  Order  entered  on May  3, \n2024, under AWCC Advisory 2003-2, the Full Commission granted the motion. \n \n \n1\nThe prehearing questionnaire’s filing notwithstanding, the record does not \nshow  that  Claimant’s  then-counsel  affirmatively  requested  a  hearing;  and  the \nquestionnaire  in  and  of  itself  was  not  treated  as  such by  the  Clerk  of  the \nCommission. \n\nSANDIDGE – H400361 \n \n3 \n \n The  record  reflects  that  nothing  further  took  place  on  this  claim  until \nNovember  22, 2024.   On that date, Respondents filed the  instant motion, asking \nfor  dismissal  of  the  claim under  AWCC  R.  099.13 and  Ark.  Code  Ann. § 11-9-\n702(a)(4) (Repl.  2012).    Therein,  they  alleged  that  more  than  six  months  had \nelapsed  since  the  filing  of  the  claim  without  a  hearing  request  being  made  by \nClaimant.  My office wrote Claimant on November 25, 2024, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \nto the Conway,  Arkansas address of  Claimant as  shown  on  her  Form  AR-C.  \nClaimant signed for the certified letter on November 27, 2024; and the first-class \nletter  was  not  returned.    However,  no  response  to  the  Motion  to  Dismiss  was \nforthcoming from Claimant. \n On December 17, 2024, a hearing on the Motion to Dismiss was scheduled \nfor February 6, 2025, at 9:30 a.m. at the Commission in Little Rock.  The Notice of \nHearing was sent to Claimant via first-class and certified mail to the same address \nas  before.  Claimant again signed  for the  certified  letter—this  time on  December \n18,   2024.      And   as   before, the first-class   letter was not returned   to   the \nCommission. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nFebruary  6,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents appeared  through  counsel  and  argued  for  dismissal  under the \naforementioned authorities. \n\nSANDIDGE – H400361 \n \n4 \n \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 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 \nher 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).  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) reads: \n\nSANDIDGE – H400361 \n \n5 \n \n(4) If within six (6) months after the filing of a claim for compensation \nno  bona  fide  request  for  a  hearing  has  been  made  with  respect  to \nthe  claim,  the  claim may,  upon  motion  and  after  hearing,  be \ndismissed   without   prejudice   to   the   refiling   of   the   claim   within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \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 her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the February  6,  2024, hearing  to  argue \nagainst its dismissal)  since the filing  of  her  Form  AR-C on January  18,  2024.  \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-\n702(a)(4). \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 \n\nSANDIDGE – H400361 \n \n6 \n \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.\n2\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 \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).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400361 ALEXIA SANDIDGE, EMPLOYEE CLAIMANT WENDY’S OLD FASHIONED HAMBURGERS, EMPLOYER RESPONDENT TRAVELERS CASUALTY INS. CO. OF AMER., CARRIER RESPONDENT OPINION FILED FEBRUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 6, ...","fetched_at":"2026-05-19T22:43:35.561Z","links":{"html":"/opinions/alj-H400361-2025-02-12","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SANDIDGE_ALEXIA_H400361_20250212.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}