{"id":"alj-H400889-2024-12-16","awcc_number":"H400889","decision_date":"2024-12-16","opinion_type":"alj","claimant_name":"Ricky Price","employer_name":"Kirkpatrick Holdings, LLC","title":"PRICE VS. KIRKPATRICK HOLDINGS, LLC AWCC# H400889 December 16, 2024","outcome":"dismissed","outcome_keywords":["dismissed:3"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Price_Ricky_H400889_20241216.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Price_Ricky_H400889_20241216.pdf","text_length":9738,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400889 \n \n \nRICKY L. PRICE, DDS, EMPLOYEE CLAIMANT \n \nKIRKPATRICK HOLDINGS, LLC, \n EMPLOYER RESPONDENT \n \nCINCINNATI INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 16, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 13, 2024, \nin Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law, Little \nRock, Arkansas. \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 December 13, 2024, in \nForrest  City,  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 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”),   forms,   pleadings,   and \ncorrespondence related to this claim, consisting of 29 pages. \n\nBROWN – H401705 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on February 6, 2024, Claimant \npurportedly  suffered  an injury  to  his head at  work  on November 27,  2023,  when \nhe stood up and struck a light fixture.  According to the Form AR-2 that was also \nfiled  on February  7,  2024,  Respondents controverted  the  claim on  the basis  that \nthe medical records “showed health issues that are not related to the work event.” \n On March 11,  2024, the  Commission received  a  handwritten  letter  from \nClaimant that reads in pertinent part: \nRe:  Claim Denial \n \nClaim #H400889 \nDOI:  11/27/23 \n \nPlease proceed with the appeal/hearing in the above referenced claim. \n \nThank you, \n \n/s/ Ricky L. Price DDS \n \nDr. Ricky L. Price \n \nHe responded to a questionnaire sent to him by the Commission’s Legal Advisor \nDivision.    Therein,  he  represented  that  while  the  amount  in  dispute  in  his  claim \nwas  in  excess  of  $2,500.00,  he  nonetheless  wanted  to  attempt  mediation.  \nRespondents’ counsel, however, informed the Commission that her clients were \nnot  willing  to  mediate  the  matter.    Because  of  the  failure  to  set  up  a  mediation \nconference, the Clerk of the Commission was requested to reassign the file to an \nadministrative law judge. \n\nBROWN – H401705 \n \n3 \n \n Per  this  request,  the  file  was  assigned  to  me  on  April  9,  2024.    I  issued \nprehearing  questionnaires  to  the  parties.    Claimant  filed  a  response  thereto  on \nMay  20, 2024;  and  Respondents  followed  suit  on  June 10, 2024.  Claimant  sent \nme  a  handwritten  letter  dated  June  11,  2024,  received  on  June  14,  2024,  that \nreads: \nMay   I   request   a   continuance   to   have   more   time   to   acquire \ndocuments  &  to  have  my  follow-up  visits  with  my  Neurologist  & \nCardiologist before proceeding.  Thank you. \n \nI interpreted this as a withdrawal of his hearing request, and returned his claim file \nto the Commission’s general files on June 14, 2024. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember 17, 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) &  (d) (Repl.  2012) because Claimant (1) had not sought  a  hearing on \nhis claim in the preceding six months, and (2) had not responded to discovery that \nhad been propounded to him.  My office wrote Claimant on September 18, 2024, \nasking  for  a  response  to  the  motion within  20  days.   The  letter  was  sent  by  first \nclass and  certified mail  to the Wynne,  Arkansas address for Claimant that  was \nlisted  in  the  file  and  in  his  prehearing  questionnaire  response.  A “Regina Price” \nsigned for the certified letter on September 20, 2024; and the first-class letter was \nnot  returned.   Regardless,  no  response  from Claimant to  the  motion was \nforthcoming.    On October 11,  2024,  a  hearing  on  the Motion to Dismiss was \n\nBROWN – H401705 \n \n4 \n \nscheduled for December 13,  2024, at 10:30 a.m.  at  the St.  Francis  County \nCourthouse in Forrest  City.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail to  the  same  address as  before.   In  this  instance, “Regina Price” \nclaimed the certified  letter on October  15,  2024;  and the first-class  letter was, \nagain, 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 \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. \n\nBROWN – H401705 \n \n5 \n \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 \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 No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal claim.”  While a Form AR-1 was filed in this case, that does not suffice to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \n\nBROWN – H401705 \n \n6 \n \nAppeals  discussed  the  minimum  requirements  necessary  for  correspondence  to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.   There,  the court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that he  has  been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor  additional  compensation  where  the  correspondence  also  lists  the  claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146  (1993).    My \nreview of the Commission’s file discloses a document sufficient to constitute a \nclaim  for  initial  benefits  under Cook, supra.  That document is Claimant’s March \n11, 2024, hearing request—discussed above. \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 December 13,  2024, hearing  to  argue \nagainst its dismissal)  since he  withdrew  his  hearing  request on June  11,  2024.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  the  argument  made  under § 11-9-702  will  not  be \naddressed. \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 \n\nBROWN – H401705 \n \n7 \n \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  with  prejudice.   But  based  on \nthe  foregoing,  I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial 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. H400889 RICKY L. PRICE, DDS, EMPLOYEE CLAIMANT KIRKPATRICK HOLDINGS, LLC, EMPLOYER RESPONDENT CINCINNATI INDEMN. CO., CARRIER RESPONDENT OPINION FILED DECEMBER 16, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 13, 2024, in Forrest...","fetched_at":"2026-05-19T22:45:29.098Z","links":{"html":"/opinions/alj-H400889-2024-12-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Price_Ricky_H400889_20241216.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}