{"id":"alj-H404905-2025-05-08","awcc_number":"H404905","decision_date":"2025-05-08","opinion_type":"alj","claimant_name":"Betty Horton","employer_name":"Penske Truck Leasing Lp","title":"HORTON VS. PENSKE TRUCK LEASING LP AWCC# H404905 May 08, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["shoulder","knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Horton_Betty_H404905_20250508.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Horton_Betty_H404905_20250508.pdf","text_length":8274,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404905 \n \n \nBETTY HORTON, EMPLOYEE CLAIMANT \n \nPENSKE TRUCK LEASING LP, \nEMPLOYER RESPONDENT \n \nOLD REPUBLIC INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 8, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May  7,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  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 7, 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 one  index  page  and  nine \nnumbered  pages  thereafter.  Also,  in  order  to  address  adequately  this  matter \nunder  Ark.  Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct \nthe hearing . . . in a manner which best ascertains the rights of the parties”), and \nwithout   objection,   I   have   blue-backed   to   the   record   documents   from   the \n\nHORTON – H404905 \n \n2 \n \nCommission’s file on the claim, consisting of 12 pages.  In accordance with Sapp \nv.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \n The record shows the following procedural history: \n On July 31, 2024, through then-counsel Laura Beth York, Claimant filed a \nForm   AR-C, requesting   the   full   range   of initial and   additional benefits in \nconnection  with an injury to  her right shoulder “and other whole body” that she \nallegedly  suffered  at  work  on June  24,  2024.  No  hearing  request  accompanied \nthis filing.  On October 7, 2024, Respondents filed a Form AR-2, stating that they \nwere “[a]ccepting [a] one time visit.”  They amended this filing on December 5, \n2024, stating that “[t]his is the same body part as other open claim.\n1\n  This claim is \nbeing closed and will treat on prior claim.”  On October 17, 2024, York moved to \nwithdraw from her representation of Claimant.  In an order entered on October 30, \n2024, 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 4, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim\n2\n under AWCC R. 099.13 because “Claimant has not sought \n \n \n1\nSee infra note 2. \n \n \n2\nRespondents in their motion reference two Forms AR-C being filed in this \nmatter:   one  on  August  11, 2023,  and  the  other  on  July 10,  2024.   The  file  does \nnot  contain  this  purported  earlier  Form  AR-C;  but  I  note  that  its  filing  would  pre-\ndate the alleged injury date, June 24, 2024.  The motion explains this anomaly: \n \n\nHORTON – H404905 \n \n3 \n \nany type of bona fide hearing before the Workers’ Compensation Commission.”  \nThe file was assigned to Administrative Law Judge JayO. Howe.  His office wrote \nClaimant on February  10,  2025,  asking  for  a  response  to  the  motion within  20 \ndays.   The  letter  was  sent  by  first  class and  certified mail  to the White  Hall, \nArkansas address for her listed in the file and on her Form AR-C.  Someone with \nan illegible signature signed for the certified letter on February 14, 2025; and the \nfirst-class letter was not returned.  Regardless, no response from Claimant to the \nmotion was forthcoming.  On March 13, 2025, a hearing on the Motion to Dismiss \nwas  scheduled for May  7,  2025, at 1:30 p.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.  In this instance, Claimant claimed the certified letter on March \n18, 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 authority. \n \nThis  claim  involves  an  injury  which  occurred  on  or  about  July  30, \n2022.    Respondents  will  stipulate  that  an  Employer-Employee \nrelationship  existed  on  that  date  and  that  Claimant  sustained  a \ncompensable injury to her right shoulder and left knee. \n \nI take judicial notice that the above allegations were the subject of another claim, \nAWCC  No.  H207279.    That  claim  was  dismissed on Respondents’  motion  by \nAdministrative Law Judge Steven Porch on March 31, 2025. \n\nHORTON – H404905 \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 \nthis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \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\nHORTON – H404905 \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 May  7,  2025, hearing to  argue  against \nits dismissal)  since the filing  of  her  Form  AR-C  on  July  31,  2024.    Thus,  the \nevidence 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 \n\nHORTON – H404905 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n3\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 \n3\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. H404905 BETTY HORTON, EMPLOYEE CLAIMANT PENSKE TRUCK LEASING LP, EMPLOYER RESPONDENT OLD REPUBLIC INS. CO., CARRIER RESPONDENT OPINION FILED MAY 8, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 7, 2025, in Little Rock, Pulaski County, ...","fetched_at":"2026-05-19T22:40:29.701Z","links":{"html":"/opinions/alj-H404905-2025-05-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Horton_Betty_H404905_20250508.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}