{"id":"alj-H405016-2025-05-06","awcc_number":"H405016","decision_date":"2025-05-06","opinion_type":"alj","claimant_name":"Jacob Mupene","employer_name":"Shearers Foods LLC","title":"MUPENE VS. SHEARERS FOODS LLC AWCC# H405016 May 06, 2025","outcome":"dismissed","outcome_keywords":["dismissed:3"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Mupene_Jacob_H405016_20250506.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mupene_Jacob_H405016_20250506.pdf","text_length":9702,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405016 \n \n \nJACOB MUPENE, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \n     EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \n     CARRIER RESPONDENT \n \n \nOPINION FILED MAY 6, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2025, \nin Jonesboro, Craighead 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  May  2,  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.  \nAdmitted into evidence was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 43 numbered pages.  Also, in order \nto address 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 41 \n\nMUPENE – H405016 \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 reflects the following procedural history: \n     Per the First Report of Injury or Illness filed on August 6, 2024, Claimant \npurportedly  suffered  an  injury  to  his  feet  on  July  13,  2024,  from  excessive \nstanding.  According to the Form AR-2 that was also filed on August 6, 2024, \nRespondents controverted the claim in its entirety.  Respondents’ counsel entered \nhis appearance before the Commission on May 19, 2023. \n     On August 14, 2024, the Commission received a letter from Claimant that \nreferenced the instant claim and stated pertinent part:  “I am writing this letter to \nrequest a review and overturn[ing] of the decision that was made regarding my \nclaim.  With all due respect, I have reason to believe my claim was wrongfully \ndenied.”  He later referred to this correspondence as an “appeal” of Respondents’ \ndenial and requested benefits in the forms of, inter alia, medical treatment of his \nalleged injuries, which he represented included his back.  Claimant responded to \na questionnaire sent to him by the Commission’s Legal Advisor Division.  Therein, \nhe represented that while the amount in dispute in his claim was in excess of \n$2,500.00,  he  nonetheless  wanted  to  attempt  mediation.    In  another  letter \nreceived by the Commission on August 23, 2024, Claimant made a “settlement \ndemand” of Respondents. \n\nMUPENE – H405016 \n \n3 \n \n     Because the attempt to set up a  legal advisor or mediation conference \nfailed, the file was reassigned to me on August 29, 2024.  Respondents’ counsel \nentered  his  appearance  on  September  9,  2024.    Preliminary  notices  and \nprehearing  questionnaires  were  issued  to  the  parties  on  September  9,  2024.  \nRespondents  filed  timely  responses  thereto—on  September  17,  2024,  and \nOctober 8, 2024, respectively.  But due to Claimant’s failure to file responses, his \nfile was returned to the Commission’s general files on November 5, 2024. \n     The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 6, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under AWCC R. 099.13 because Claimant (1) had not filed \na prehearing questionnaire response, and (2) had not responded to discovery that \nhad been propounded to him in September 2024.  My office wrote Claimant on \nFebruary 12, 2025, asking for a response to the motion within 20 days.  The letter \nwas sent by first class and certified mail to the Bradford, Arkansas post office box \nthat Claimant had used on all his correspondence with the Commission.  While \nthe  certified  letter  was  returned  to  the  Commission,  unclaimed,  on  March  14, \n2025,  the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  Also on March 14, 2025, a hearing on \nthe  Motion  to  Dismiss  was  scheduled  for  May  2,  2025,  at  11:30  a.m.  at  the \nCraighead County Courthouse in Jonesboro.  The notice was sent to Claimant via \nfirst-class and certified mail to the same address as before.  Once again, the \n\nMUPENE – H405016 \n \n4 \n \ncertified letter was returned to the Commission, unclaimed, on March 28, 2025, \nwhile 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 authorities. \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 \nhis 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. \n\nMUPENE – H405016 \n \n5 \n \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     No Form AR-C has been filed in this case.  That is the means for filing a \n“formal claim.”  While a Form AR-1 was filed in this case, that does not suffice to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \nAppeals discussed the minimum requirements necessary for correspondence to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.    There,  the  court  held  that  an \n\nMUPENE – H405016 \n \n6 \n \nattorney's correspondence notifying the Commission that he has been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor additional compensation where the correspondence also lists the claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company, 43 Ark. App. 37, 858 S.W.2d 146 (1993).  My \nreview of the Commission’s file discloses a document sufficient to constitute a \nclaim for initial benefits under Cook, supra.  That document is Claimant’s August \n14, 2024, correspondence—discussed above. \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 May 2, 2025, hearing to argue against its \ndismissal)  since  August  23,  2024.    Thus,  the  evidence  preponderates  that \ndismissal 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.  Based on \n\nMUPENE – H405016 \n \n7 \n \nthe foregoing, I agree and  find that the dismissal of  this claim should be and \nhereby is entered without prejudice.\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. H405016 JACOB MUPENE, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED MAY 6, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2025, in Jonesboro, Craighead Count...","fetched_at":"2026-05-19T22:40:19.197Z","links":{"html":"/opinions/alj-H405016-2025-05-06","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Mupene_Jacob_H405016_20250506.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}