{"id":"alj-H405524-2025-05-15","awcc_number":"H405524","decision_date":"2025-05-15","opinion_type":"alj","claimant_name":"Christopher Bynum","employer_name":"Mccormick Indust. Abatement Svcs","title":"BYNUM VS. McCORMICK INDUST. ABATEMENT SVCS. AWCC# H405524 May 15, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Bynum_Christopher_H405524_20250515.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bynum_Christopher_H405524_20250515.pdf","text_length":6772,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405524 \n \n \nCHRISTOPHER L. BYNUM, EMPLOYEE CLAIMANT \n \nMcCORMICK INDUST. ABATEMENT SVCS., \n EMPLOYER RESPONDENT \n \nAMERICAN INTERSTATE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 15, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 14, 2025, \nin Clinton, Van Buren County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, 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.   Admitted  into \nevidence was Respondents’ Exhibit 1, pleadings and forms related to this claim, \nconsisting  of two pages.  Also,  in  order  to  address  adequately  this  matter  under \nArk.  Code  Ann. § 11-9-705(a)(1)  (Repl.  2012)(Commission  must  “conduct  the \nhearing . . . in a manner which best ascertains the rights of the parties”), and \nwithout   objection, I   have   blue-backed   to   the   record documents from   the \nCommission’s file on the claim,  consisting  of eight pages.  In  accordance  with \n\nBYNUM – H405524 \n \n2 \n \nSapp v. 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 reflects the following procedural history: \n Per the Form AR-C filed on August 26, 2024, Claimant purportedly suffered \nan injury at work on July 23, 2024, in the form of a heatstroke.  According to the \nForm AR-2 that was also filed on August 6, 2024, Respondents controverted the \nclaim in its entirety. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 26, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim  under  AWCC  R.  099.13  because  Claimant  has failed  to \nprosecute  his  claim.    The  matter  was  assigned  to  Administrative  Law  Judge \nJames D. Kennedy.  His office wrote Claimant on February 26, 2025, asking for a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class  and \ncertified mail to the Atkins, Arkansas address listed for Claimant in the file and on \nhis Form AR-C.  “Amber Bynum” signed for the certified letter on March 1, 2025; \nand the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant  to  the  motion  was  forthcoming.   On March  18,  2025,  a  hearing  on  the \nMotion  to  Dismiss  was  scheduled  for May 14,  2025,  at  10:30  a.m.  at  the Van \nBuren County Quorum Courtroom in Clinton.  The notice was sent to Claimant via \nfirst-class and certified mail to the same address as before.  In this instance, the \n\nBYNUM – H405524 \n \n3 \n \ncertified  letter  was  returned  to  the  Commission,  unclaimed,  on April  11,  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 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. \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\nBYNUM – H405524 \n \n4 \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 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 14, 2025, hearing to argue against its \ndismissal)  since the  filing  of  his  Form  AR-C  on August  26,  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 \n\nBYNUM – H405524 \n \n5 \n \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 \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 initial 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. H405524 CHRISTOPHER L. BYNUM, EMPLOYEE CLAIMANT McCORMICK INDUST. ABATEMENT SVCS., EMPLOYER RESPONDENT AMERICAN INTERSTATE INS. CO., CARRIER RESPONDENT OPINION FILED MAY 15, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 14, 2025,...","fetched_at":"2026-05-19T22:40:42.157Z","links":{"html":"/opinions/alj-H405524-2025-05-15","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Bynum_Christopher_H405524_20250515.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}