{"id":"alj-H404533-2025-04-24","awcc_number":"H404533","decision_date":"2025-04-24","opinion_type":"alj","claimant_name":"Erick Alverez","employer_name":"Afco Steel, Inc","title":"ALVAREZ VS. AFCO STEEL, INC. AWCC# H404533 April 24, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Alverez_Erick_H404533_20250424.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Alverez_Erick_H404533_20250424.pdf","text_length":7439,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404533 \n \n \nERICK E. RAMIREZ ALVAREZ, EMPLOYEE CLAIMANT \n \nAFCO STEEL, INC., \nEMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 24, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  24,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  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 April 24, 2025, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence    was Respondents’  Exhibit  1,  forms,  pleadings,  reports,  and \ncorrespondence related to this claim, consisting of 11 numbered pages.    Also, 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 15 \n\nALVEREZ – H404533 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on July  22,  2024,  Claimant \npurportedly  suffered  an  injury  to  his  left  ankle at  work  on June  22,  2024,  while \n“jumping from one beam to another.”  According to the Form AR-2 that was filed \non July 31, 2024, Respondents accepted the claim as a medical-only one. \n On July 16, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C, requesting the full range of additional benefits and alleging that he \nactually  injured  both  ankles  in  the  June  22,  2024,  incident.  Counsel  in  an  email \naccompanying  this  filing  stated  that  he  was  “not  asking  for  a  hearing.”  \nRespondents’ counsel entered their appearance on September 12, 2024; and on \nthat  same  day,  he  propounded  discovery  to  Claimant.    That  discovery  remains \nunanswered. \n On December 2, 2024, Peoples moved to withdraw from his representation \nof  Claimant.    In  an  Order  entered  on December  16,  2024, the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 3, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under AWCC R. 099.13 “for lack of prosecution.”  My office \n\nALVEREZ – H404533 \n \n3 \n \nwrote Claimant on February 12, 2025, asking for a response to the motion within \n20  days.   The  letter  was  sent  by  first  class and  certified mail  to the Little  Rock, \nArkansas address for  her listed  in  the  file and  on his Form  AR-C.   The  certified \nletter was  returned  to  the  Commission,  unclaimed,  on  March  18,  2025; but the \nfirst-class letter was not returned.  Regardless, no response from Claimant to the \nmotion was forthcoming.  On March 10, 2025, a hearing on the Motion to Dismiss \nwas  scheduled for April  24,  2025, at 9:30 a.m.  at  the Commission in Little  Rock.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as before.  As before, the certified letter was returned to the Commission, \nunclaimed, on April 11, 2025, while the first-class letter was 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 authority. \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. \n\nALVEREZ – H404533 \n \n4 \n \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 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) \n\nALVEREZ – H404533 \n \n5 \n \nClaimant has failed to pursue her claim because he has taken no further action in \npursuit of it (including appearing at the April 24, 2025, hearing to argue against its \ndismissal) since the filing of his Form AR-C on July 16, 2024.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nthe argument made under § 11-9-702(a)(4) 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)).  \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 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. H404533 ERICK E. RAMIREZ ALVAREZ, EMPLOYEE CLAIMANT AFCO STEEL, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED APRIL 24, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 24, 2025, in Little Rock, Pul...","fetched_at":"2026-05-19T22:41:57.404Z","links":{"html":"/opinions/alj-H404533-2025-04-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Alverez_Erick_H404533_20250424.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}