{"id":"alj-H404748-2025-05-15","awcc_number":"H404748","decision_date":"2025-05-15","opinion_type":"alj","claimant_name":"Eugene Pendergast","employer_name":"Xylem Tree Experts, Inc","title":"PENDERGAST VS. XYLEM TREE EXPERTS, INC. AWCC# H404748 May 15, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Pendergast_Eugene_H404748_20250515.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pendergast_Eugene_H404748_20250515.pdf","text_length":7286,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404748 \n \n \nEUGENE R. PENDERGAST, EMPLOYEE CLAIMANT \n \nXYLEM TREE EXPERTS, INC., \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 15, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May 14,  2025, in \nClinton, Van Buren County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, 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 May 14,  2025, in \nClinton, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In  order  to \naddress  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(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 nine \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nPENDERGAST – H404748 \n \n2 \n \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 On July 24, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na  Form  AR-C, requesting  the  full  range  of initial benefits in  connection  with an \ninjury in the form of Lyme disease, which he alleged he contracted as a result of a \ntick  bite  he  suffered  while  at  work on June 19,  2024.  No  hearing  request \naccompanied  this  filing.   On July  31,  2024,  Respondents  filed  a  Form  AR-2, \nstating  that  they  were controverting  the  claim  in  its  entirety.  Peoples moved  to \nwithdraw from his representation of Claimant.  In an order entered on December \n20, 2024, the Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 14, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under Ark. Code Ann. § 11-9-702 (Repl. 2012) and AWCC \nR.  099.13 because Claimant  had not  sought a hearing  before  the  Commission \nand  had  otherwise  failed  to  pursue  his  claim.   The  file  was  assigned  to \nAdministrative  Law  Judge James  D.  Kennedy  on  February  20,  2025.    His office \nwrote Claimant that same day, asking for a response to the motion within 20 days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Mountain  View, \nArkansas address for  him listed  in  the  file and  on his Form  AR-C.   The  certified \nletter was  returned  to  the  Commission on February 26,  2025,  with  the  notation \n\nPENDERGAST – H404748 \n \n3 \n \nthat  his  address  lacked  a  mail  receptacle; but the  first-class  letter  was  not \nreturned.  Regardless, no response from Claimant to the motion was forthcoming.  \nOn March 13,  2025,  a  hearing  on  the Motion to Dismiss was  scheduled for May \n14,  2025, at 10:00 p.m.  at  the Van  Buren County  Quorum  Courtroom in Clinton.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as before.  In this instance, Claimant claimed the certified letter on March \n17, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before the \nundersigned.  Again, Claimant failed to appear at the hearing.  But Respondents \nappeared   through   counsel   and   argued   for   dismissal   under the   foregoing \nauthorities. \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. \n\nPENDERGAST – H404748 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis 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 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 his claim because he has taken no further action in \n\nPENDERGAST – H404748 \n \n5 \n \npursuit of it (including appearing at the May 14, 2025, hearing to argue against its \ndismissal) since the filing of his Form AR-C on July 24, 2024.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of Ark. Code Ann. § 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 \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 for additional 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. H404748 EUGENE R. PENDERGAST, EMPLOYEE CLAIMANT XYLEM TREE EXPERTS, INC., EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT OPINION FILED MAY 15, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 14, 2025, in Clinton, Van Buren Cou...","fetched_at":"2026-05-19T22:40:44.232Z","links":{"html":"/opinions/alj-H404748-2025-05-15","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Pendergast_Eugene_H404748_20250515.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}