{"id":"alj-H401930-2024-11-01","awcc_number":"H401930","decision_date":"2024-11-01","opinion_type":"alj","claimant_name":"Travis Jones","employer_name":"Jones Dirt Works","title":"JONES VS. JONES DIRT WORKS AWCC# H401930 November 01, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Jones_Travis_H401930_20241101.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jones_Travis_H401930_20241101.pdf","text_length":7297,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401930 \n \n \nTRAVIS L. JONES, EMPLOYEE CLAIMANT \n \nJONES DIRT WORKS, \nEMPLOYER RESPONDENT \n \nAMTRUST INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on November 1, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North 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 November 1, 2024, in \nJonesboro,  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, reports, and \ncorrespondence  related  to  this  claim,  consisting  of 13 pages;  and  Respondents’ \nExhibit  1,  a  one-page  felony  information  bearing  Claimant’s  name  and  address \n(offered and considered only to verify his address). \n\nJONES – H401930 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  April  1,  2024,  Claimant \npurportedly suffered an injury to his knee at work on January 12, 2024, when he \nfell off a tractor.  According to the Forms AR-2 that were filed on April 1 and July \n16, 2024, respectively, Respondents accepted the claim as a medical-only one. \n On March 19, 2022, Claimant’s then-counsel Mark Alan Peoples made his \nentry of appearance and filed a Form AR-C on his client’s behalf, requesting the \nfull  range of  initial  benefits.  No request  for  a hearing  on the  claim accompanied \nthis filing.  Respondents’ counsel entered his appearance on April 3, 2024. \n Peoples  on  July  22,  2024,  moved  to  withdraw  from  his  representation  of \nClaimant.  In an Order entered on August 14, 2024, the Full Commission granted \nthe motion pursuant to AWCC Advisory 2003-2. \n Respondents filed the instant Motion to Dismiss under AWCC R. 099.13 on \nAugust  19,  2024.   Therein,  they  asserted  that  the  claim  should  be  dismissed \n“[b]ased on the fact that the Claimant has taken no action on this matter since the \nAR-C was filed . . . .”  The file was reassigned to me on that same date; and on \nAugust  20,  2024, my  office wrote  Claimant,  requesting  that  he  respond  to  the \nmotion within 20 days.  The correspondence was sent by certified and first-class \nmail  to  the  address  for  Claimant  listed  on  his  Form  AR-C.    The  United  States \nPostal  Service  (“USPS”)  returned  the  certified  letter  to  the  Commission  on \nSeptember 9, 2024, with the notation: \n\nJONES – H401930 \n \n3 \n \nRETURN TO SENDER \nNO SUCH STREET \nUNABLE TO FORWARD \n \nBut  the  first-class  mailing  was  not  returned.  Regardless,  no  response  by  him  to \nthe motion was forthcoming. \n On September   10,   2024,   a   hearing   on   the Motion to Dismiss was \nscheduled for November  1,  2024, at 10:30 a.m.  at  the  Craighead  County \nCourthouse in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified mail to  the  same address as  before.   In  this  instance, the certified  letter \nwas returned to the Commission by USPS with the notation: \nRETURN TO SENDER \nNOT DELIVERABLE AS ADDRESSED \nUNABLE TO FORWARD \n \nBut once again, the first-class mailing was not returned. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nNovember  1,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents appeared  through  counsel  and  argued  for  dismissal  under AWCC \nR. 099.13. \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): \n\nJONES – H401930 \n \n4 \n \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. \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13. \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\nJONES – H401930 \n \n5 \n \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 November  1,  2024, hearing  to  argue \nagainst its dismissal) since the filing of his Form AR-C on March 19, 2024.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \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 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\nJONES – H401930 \n \n6 \n \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. H401930 TRAVIS L. JONES, EMPLOYEE CLAIMANT JONES DIRT WORKS, EMPLOYER RESPONDENT AMTRUST INS. CO., CARRIER RESPONDENT OPINION FILED NOVEMBER 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on November 1, 2024, in Jonesboro, Craighead County,...","fetched_at":"2026-05-19T22:46:00.593Z","links":{"html":"/opinions/alj-H401930-2024-11-01","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Jones_Travis_H401930_20241101.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}