{"id":"alj-H406394-2025-05-23","awcc_number":"H406394","decision_date":"2025-05-23","opinion_type":"alj","claimant_name":"Robert Crosley","employer_name":"Autozone, Inc","title":"CROSLEY VS. AUTOZONE, INC. AWCC# H406394 May 23, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["shoulder","back","neck"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Crosley_Robert_H406394_20250523.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Crosley_Robert_H406394_20250523.pdf","text_length":7337,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H406394 \n \n \nROBERT T. CROSLEY, EMPLOYEE CLAIMANT \n \nAUTOZONE, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 23, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May 22,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Rick  Behring,  Jr.,  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 22, 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  pages.  Also,  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 two \n\nCROSLEY – H406394 \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 On October 1, 2024, through then-counsel Laura Beth York, Claimant filed \na  Form  AR-C, requesting  the  full  range  of initial and  additional benefits in \nconnection  with  injuries to his  right  hand,  left  shoulder,  lower  back,  neck “and \nother whole body” that he allegedly suffered at work on September 20, 2024.  No \nhearing  request  accompanied  this  filing.   On November 5,  2024,  Respondents \nfiled  a  Form  AR-2,  stating  that  they  were  accepting the  claim  as  compensable.  \nOn December  17,  2024,  York  moved  to  withdraw  from  her  representation  of \nClaimant.  In an order entered on January 15, 2025, the Full Commission granted \nthe motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until March \n26, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) and AWCC \nR. 099.13 because Claimant had not been prosecuting it by, inter alia, seeking a \nhearing on  it.  The  file  was assigned  to me on  March  27,  2025.  My office wrote \nClaimant on March 28, 2025, asking for a response to the motion within 20 days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Conway,  Arkansas \naddress for him listed in the file and on his Form AR-C.  Someone with an illegible \n\nCROSLEY – H406394 \n \n3 \n \nsignature signed for the certified letter on March 31, 2025; and the first-class letter \nwas  not  returned.   Regardless,  no  response  from Claimant to  the  motion was \nforthcoming.    On April  21,  2025,  a  hearing  on  the Motion to Dismiss was \nscheduled for May 22, 2025, at 9:30 a.m. at the Commission in Little Rock.  The \nnotice was sent to Claimant via first-class and certified mail to the same address \nas  before.   As  before, someone  with  an  illegible  signature claimed the certified \nletter on April 23, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before me.  \nAgain,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents appeared \nthrough counsel 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 \nthis claim under AWCC R. 099.13. \n\nCROSLEY – H406394 \n \n4 \n \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 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 22, 2025, hearing to argue against its \ndismissal)  since the filing  of  his Form  AR-C  on October 1,  2024.    Thus,  the \n\nCROSLEY – H406394 \n \n5 \n \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of Ark. Code Ann. § 11-9-\n702(a)(4) & (d). \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. H406394 ROBERT T. CROSLEY, EMPLOYEE CLAIMANT AUTOZONE, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MAY 23, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 22, 2025, in Little Rock, Pulaski ...","fetched_at":"2026-05-19T22:41:17.740Z","links":{"html":"/opinions/alj-H406394-2025-05-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Crosley_Robert_H406394_20250523.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}