{"id":"alj-H402866-2025-01-23","awcc_number":"H402866","decision_date":"2025-01-23","opinion_type":"alj","claimant_name":"Jessica Bonner","employer_name":"Fmh Conveyors LLC","title":"BONNER VS. FMH CONVEYORS LLC AWCC# H402866 January 23, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["strain","shoulder","neck"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Bonner_Jessica_H402866_20250123.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bonner_Jessica_H402866_20250123.pdf","text_length":7522,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402866 \n \n \nJESSICA E. BONNER, EMPLOYEE CLAIMANT \n \nFMH CONVEYORS LLC, \nEMPLOYER RESPONDENT \n \nVALLEY FORGE INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Benjamin  Daniel  Davis,  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 January  17,  2025, 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.   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 22 \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nBONNER – H402866 \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 May  3,  2024,  Claimant \npurportedly suffered a strain injury  to her  left  upper  extremity at  work  on June  6, \n2022.  According  to the  Form  AR-2 that  was also filed on May  3,  2024, \nRespondents accepted the claim as a medical-only one. \n On April 30, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C.  Therein, she alleged that she was entitled to the full range of initial \nbenefits  as  a  result  of a  “crush  injury  to  [her]  left  arm”  and  compensable \nconsequence  injuries  to  her  arm,  shoulder,  and  neck.  Respondents’ co-counsel \nentered  his  appearance  before the  Commission  on May  15,  2024.  Also  on  that \ndate,   he   propounded   a   set   of   interrogatories   and   requests for   document \nproduction to Claimant’s counsel. \n On   September   6,   2024,   Peoples   moved   for   permission   from   the \nCommission to withdraw from his representation of Claimant.  In an Order entered \non October 3, 2024, under AWCC Advisory 2003-2, the Full Commission granted \nthe motion. \n On November 18,  2024, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13 and  Ark.  Code  Ann. § 11-9-702 \n(Repl. 2012).  Therein, they alleged that more than six months had elapsed since \n\nBONNER – H402866 \n \n3 \n \nthe  filing  of  the  claim  without  a  hearing  request  being  made  by  Claimant.    My \noffice wrote Claimant on November 18, 2024, asking for a response to the motion \nwithin  20  days.   The  letter  was  sent  by  first  class and  certified mail  to the \nJonesboro address of Claimant as shown on her Form AR-C.  The certified letter \nwas  returned  to  the  Commission,  unclaimed,  on  December  2,  2024,  bearing  the \nfollowing notation: \n RETURN TO SENDER \n ATTEMPTED NOT KNOWN \n UNABLE TO FORWARD \n \n On December 10, 2024, a hearing on the Motion to Dismiss was scheduled \nfor January  17,  2025, at 12:30 p.m.  at  the Craighead County  Courthouse  in \nJonesboro.   The Notice of  Hearing was  sent  to  Claimant  via  first-class  and \ncertified mail to  the  same address as  before.   In  this  instance, on December  16, \n2024, Claimant signed for the certified letter.  And as before, the first-class letter \nwas not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n17,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \n\nBONNER – H402866 \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). \n\nBONNER – H402866 \n \n5 \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 January  17,  2024, hearing  to  argue \nagainst its dismissal) since the filing of her Form AR-C on April 30, 2024.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the application of § 11-9-702. \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 \n\nBONNER – H402866 \n \n6 \n \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 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. H402866 JESSICA E. BONNER, EMPLOYEE CLAIMANT FMH CONVEYORS LLC, EMPLOYER RESPONDENT VALLEY FORGE INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in Jonesboro, Craighead...","fetched_at":"2026-05-19T22:44:36.670Z","links":{"html":"/opinions/alj-H402866-2025-01-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Bonner_Jessica_H402866_20250123.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}