{"id":"alj-H401705-2025-08-19","awcc_number":"H401705","decision_date":"2025-08-19","opinion_type":"alj","claimant_name":"Karisha Brown","employer_name":"Central Ark. Opthalmology","title":"BROWN VS. CENTRAL ARK. OPTHALMOLOGY AWCC# H401705 August 19, 2025","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250819.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Karisha_H401705_20250819.pdf","text_length":11461,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401705 \n \n \nKARISHA BROWN, EMPLOYEE CLAIMANT \n \nCENTRAL ARK. OPTHALMOLOGY, \n EMPLOYER RESPONDENT \n \nUNION INS. CO. OF PROVIDENCE, \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 19, 2025 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on August  14, \n2025, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on August  14,  2025, in  Little \nRock,  Arkansas.    Claimant failed  to  appear  at  the  hearing.    Respondents  were \nrepresented at the hearing by Ms. Karen H. McKinney, Attorney at Law, of Little \nRock,  Arkansas.   The  record  consists  of  the following:  Respondents’ Exhibit 1, \nforms,  pleadings,  and  correspondence  related  to  this  claim, consisting  of 34 \nnumbered pages.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing \n. . . in a manner which best ascertains the rights of the parties”), and without \nobjection,    I    have    blue-backed    to    the    record forms,    pleadings,    and \ncorrespondence from the Commission’s file on the claim, totaling 18 pages.    In \n\nBROWN – H401705 \n \n2 \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549, these documents have been served on the parties in conjunction with \nthis  opinion.  In  addition,  the  transcript  and  blue-back  of  the  January  30,  2025, \nhearing on this claim has been incorporated herein by reference. \n The evidence reflects that on March 8, 2024, Claimant filed a Form AR-C, \nalleging  that she was  entitled  to initial medical  and  temporary  partial  disability \nbenefits for her injuries she allegedly suffered on October 17, 2023.  She related: \nAttacked and bitten by Dr. Roza[’]s [b]ig [d]og walking down hallway \nto my desk after delivering patient[’]s to the [d]octor[’]s offices.  Dog \njumped  on  my  back[,]  scratching  me[,]  pushing  me[,]  and  bit  my \nback of [r]ight arm. \n \nPer  the  First  Report  of  Injury  or  Illness  filed  on  March  21,  2024,  Claimant \npurportedly suffered injuries at work on October 17, 2023, while returning patient \ncharts.    According  to  the  Form  AR-2  that  was  also  filed  on  March  21,  2024, \nRespondents controverted the claim in its entirety. \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nOctober  10,  2024,  when  Respondents  filed  the  instant  Motion  to  Dismiss under \nAWCC R. 099.13 (now codified as 11 C.A.R. § 25-110(d)) and Ark. Code Ann. § \n11-9-702  (Repl.  2012).    Therein,  they  alleged  that  more  than  six  months  had \nelapsed  since  the  filing  the  Form  AR-C without  Claimant  requesting  a  hearing \nthereon.    The  file  was  reassigned  to me on October  11,  2024;  and on  October \n14,  2024, my  office wrote  Claimant,  requesting  a  response  to  the  motion  within \n20  days.   The  letter  was  sent  to  Claimant  by  first-class  and  certified  mail  to  the \n\nBROWN – H401705 \n \n3 \naddress she listed on the Form AR-C:  1502 Green Mountain Drive, Little Rock, \nArkansas  72211.  However, both items of correspondence were returned to the \nCommission  with  the  notation  “INSUFFICIENT  ADDRESS.”    (Emphasis  in \noriginal)  Unsurprisingly, no response from Claimant was forthcoming. \n On  November  6,  2024,  this  hearing  was  initially  scheduled  for  December \n12, 2024, at 9:30 a.m. at the Commission in Little Rock.  The Notice of Hearing \nwas  sent to  Claimant at  the  same  address as  used  previously.   As  before,  both \nthe  certified  and  first-class  letters  were  returned.    On  December  10,  2024,  I \nemailed  Respondents’  counsel  that  the  notations  on  the  returned \ncorrespondence  led  me  to  research  and  confirm  that  Claimant  resided  at  an \napartment  complex,  and  that  her  unit  number  was  172.    For  that  reason,  I \ncanceled the hearing and issued a new 20-day letter with the enhanced address.  \nBut once again, the United States Postal Service returned both the certified and \nfirst-class  letters,  explaining  that  they  were  “NOT  DELIVERABLE  AS \nADDRESSED.”  (Emphasis in original)  Again—unsurprisingly—Claimant did not \nfile the requested response to Respondents’ motion. \n On  December  30,  2024,  the  hearing  on  the  Motion  to  Dismiss  was \nrescheduled for January 30, 2025, at 9:30 a.m. at the Commission in Little Rock.  \nBut in this instance, while the Notice of Hearing was again sent to Apartment 172 \nand the address listed on Claimant’s Form AR-C, the one sent by first-class mail \nmanaged  to  be  delivered  to  her.    She  brought  it  to  the  hearing,  crumpled,  and \n\nBROWN – H401705 \n \n4 \ntestified that it along with a number of other mail items had been delivered to her \nbelatedly en masse. \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4)  & (d)  (Repl.  2012)  and  Rule  13.  In  an  opinion  handed  down  on \nFebruary  4,  2025,  I  denied  the  motion  and  issued  prehearing  questionnaires  to \nthe parties the next day. \n Claimant filed her Preliminary Notice on February 26, 2025.  Therein. She \nrepresented  that  the  value  of  her  case  was  less  than  $2,500.00.   Respondents \nagreed.   This  triggered  mandatory  mediation.    The  file  was  transferred  to  the \nLegal  Advisor  Division  to  conduct  the  mediation.    A  mediation  conference  was \nscheduled for April 7, 2025, at 10:00 a.m.  However, Claimant failed to appear at \nthat  conference.    For  that  reason,  the  file  was  transferred  back  to  my  office  to \ncontinue with the prehearing process.  New prehearing questionnaires were sent \nout  on  April  10,  2025.    Claimant  once  again,  on  April  28,  2025,  returned  her \nPreliminary  Notice;  and  while  she  made no  representation  concerning  the  value \nof   her   claim   in   this   instance,   she   agreed   to   voluntary   mediation.      But \nRespondents   in their   April   24,   2025,   response   declined   to   participate   in \nmediation.  Claimant’s prehearing questionnaire response was due May 1, 2025.  \nHowever, that deadline came and went without her filing her response.  My office \nemailed her on May 9, 2025, giving her until May 16, 2025, to comply.  When she \n\nBROWN – H401705 \n \n5 \nfailed  to  file  the  response by  this  new  deadline,  her  file was  returned to  the \nCommission’s general files on May 20, 2025. \n On  June  18,  2025,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein, they asserted that dismissal was called for under § 11-9-702 as well as \nRule 13.  As was done on the first motion to dismiss, my office wrote Claimant on \nJune 20, 2025, requesting a response within 20 days.  This correspondence was \nsent  to  an  address  supplied  by  Claimant.   While  she  did  not  claim  the  certified \nletter—resulting  in  its  being  returned  to  the  Commission  on  July 14,  2025—the \nfirst-class  correspondence  was  not  returned.    Regardless,  she  did  not  respond.  \nOn July 15, 2025, a hearing on the motion was scheduled for August 14, 2025, at \n11:30 a.m. at the Commission in Little Rock.  The Notice of Hearing was sent to \nthe parties.  The United States Postal Service was unable to determined whether \nClaimant claimed the certified mailing; but the first-class mailing of the notice was \nnot returned. \n On August 14, 2025, the hearing on the motion proceeded as scheduled.  \nClaimant failed to  appear.    Respondents appeared  through  counsel  and argued \nfor dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n\nBROWN – H401705 \n \n6 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the July 11, \n2024, hearing thereon pursuant to 11 C.A.R. § 25-110(d). \n3. Respondents have proven by a preponderance of the evidence that \nClaimant  has  failed  to  prosecute  her  claim  under  11  C.A.R. § 25-\n110(d). \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) provides: \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).  (Emphasis added) \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 this \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\nBROWN – H401705 \n \n7 \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  August  14,  2025,  hearing  to  argue \nagainst  its  dismissal—since  she  appeared  at  the  first dismissal hearing  on \nJanuary 30, 2025.  Thus, the evidence preponderates that dismissal is warranted \nunder  11  C.A.R. § 25-110(d).    Because  of  this  finding,  the  application  of  Ark. \nCode Ann. § 11-9-702 (Repl. 2012) is moot and will not be addressed. \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)).  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 is hereby dismissed without prejudice. \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). \n\nBROWN – H401705 \n \n8 \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. H401705 KARISHA BROWN, EMPLOYEE CLAIMANT CENTRAL ARK. OPTHALMOLOGY, EMPLOYER RESPONDENT UNION INS. CO. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED AUGUST 19, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 14, 2025, in Littl...","fetched_at":"2026-05-19T22:37:41.589Z","links":{"html":"/opinions/alj-H401705-2025-08-19","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250819.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}