{"id":"alj-H502091-2025-12-19","awcc_number":"H502091","decision_date":"2025-12-19","opinion_type":"alj","claimant_name":"Matisha Neely","employer_name":"Tacos 4 Life LLC","title":"NEELY VS. TACOS 4 LIFE LLC AWCC# H502091 December 19, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Neely_Matisha_H502091_20251219.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Neely_Matisha_H502091_20251219.pdf","text_length":7030,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502091 \n \n \nMATISHA B. NEELY, EMPLOYEE CLAIMANT \n \nTACOS 4 LIFE LLC, \nEMPLOYER RESPONDENT \n \nUNION INS. OF PROVIDENCE, \nCARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 19, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 19, 2025, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law, Little \nRock, Arkansas. \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 December 19, 2025, in \nLittle  Rock,  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  Commission  Exhibit  1  (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”),  forms,  pleadings,  and \ncorrespondence related to this claim, consisting of 16 pages. \n\nNEELY – H502091 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on April  10,  2025,  Claimant \npurportedly suffered an injury to her chin/mouth when she passed out at work and \nfell  to  the  floor.  According  to  the  Form  AR-2  that  was  filed  on April  11, 2025, \nRespondents accepted  the  claim as  a  medical-only  one  and  paid  benefits \npursuant thereto. \n On April 4, 2025, Claimant filed a Form AR-C, requesting temporary partial \ndisability  benefits.    No  hearing  request  accompanied  this  filing.   Respondents’ \ncounsel entered her appearance on April 11, 2025. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober 9,  2025.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal of the claim under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012), \nalong  with  AWCC  R. 099.13  (now  codified  at  11  C.A.R. § 25-110(d)).  Therein, \nthey argued that Claimant has taken no measures to pursue her claim, including \nrequesting a hearing thereon.  The file was assigned to me on October 10, 2025; \nand  on that  same  date,  my  office wrote  Claimant,  asking  for  a  response  to  the \nmotion within 20 days.  The letter was sent by first class and certified mail to the \nJonesboro, Arkansas address for her listed in the file and on her Form AR-C.  But \nboth  items  of  correspondence  were  returned  to  the  Commission;  the United \nStates Postal Service noted that the certified letter was unclaimed, while the first-\n\nNEELY – H502091 \n \n3 \n \nclass  letter  was  “not deliverable as  addressed.”\n1\n  Unsurprisingly,  no  response \nfrom Claimant to the motion was  forthcoming.   On November  4,  2025,  a  hearing \non the Motion to Dismiss was scheduled for December 19, 2025, at 12:00 p.m. at \nthe Craighead County Courthouse in Jonesboro.  The Notice of Hearing was sent \nto Claimant via first-class and certified mail to the same address as before.  Once \nagain,  both  items  were  returned  to  the  Commission,  with  each  bearing  the \nnotation that they were “not deliverable as addressed.” \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 above 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. \n \n \n1\nIt bears repeating that the address used was the one that Claimant herself \nsupplied to the Commission. \n\nNEELY – H502091 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) 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 her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the December  19,  2025, hearing  to  argue \n\nNEELY – H502091 \n \n5 \n \nagainst its dismissal) since the filing of her Form AR-C on April 4, 2025.  Thus, the \nevidence preponderates that dismissal is warranted under the above provision. \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.\n2\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 \n2\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. H502091 MATISHA B. NEELY, EMPLOYEE CLAIMANT TACOS 4 LIFE LLC, EMPLOYER RESPONDENT UNION INS. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED DECEMBER 19, 2025 Hearing before Administrative Law Judge O. Milton Fine II on December 19, 2025, in Jonesboro, Craigh...","fetched_at":"2026-05-19T22:33:57.772Z","links":{"html":"/opinions/alj-H502091-2025-12-19","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Neely_Matisha_H502091_20251219.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}