Jonathan Thielemier vs. Randolph County

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H200712 JONATHAN THIELEMIER, EMPLOYEE CLAIMANT RANDOLPH COUNTY, Self-Insured Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Third Party Administrator RESPONDENT OPINION FILED MARCH 31, 2023 Hearing before Administrative Law Judge Steven Porch on March 24, 2023, in Jonesboro, Craighead County, Arkansas Claimant represented himself, Pro Se. Respondent No. 1 is represented by Mr. Michael E. Ryburn, Attorney at Law, Little Rock, Arkansas. I. BACKGROUND This matter comes before the Commission on a Motion to Dismiss by Respondents. No testimony was taken. The evidentiary record consists of Respondents Exhibit 1 and oral argument of the Respondents. Without objection, the Commission’s file on this claim has been incorporated herein by reference in its entirety. The record reflects the following procedural history: The Claimant has alleged he has sustained multiple injuries when he fell into an open top trailer during the course and scope of his employment. Claimant specifically alleges that he has sustained injuries to his face, eyes, wrists, arms, neck, spine, and multiple other body parts from a specific incident on January 10, 2022. Respondents accepted the claim as compensable and have paid benefits. The Claimant filed a

THIELEMIER – H200712 2 Form AR-C with the Commission on March 2, 2022. Since then, the Claimant has not requested a hearing and no efforts have been made to prosecute this claim. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW After reviewing the record as a whole, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): 1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. 2. The parties were provided reasonable notice of the motion to dismiss and of the hearing thereon under AWCC R. 099.13. 3. The Commission is authorized to dismiss claims for want of prosecution pursuant to AWCC R. 099.13. 4. This claim should be, and hereby is, dismissed without prejudice pursuant to AWCC R. 099.13 due to want of prosecution. 5. Because of the above finding, Ark. Code Ann. § 11-9-702(d) (Repl. 2012) will not be addressed. III. DISCUSSION Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: If within six (6) months after the filing of a claim for additional compensation, no bona fide request for a hearing has been made with respect to the claim, the claim may, upon motion and after hearing, if necessary, be dismissed without prejudice to the refiling of the claim within the limitation period specified in subsection (b) of this section.

THIELEMIER – H200712 3 In addition, AWCC R. 099.13 provides in relevant part: Upon meritorious application to the Commission from either party in an action pending before the Commission, requesting that the claim be dismissed for want of prosecution, the Commission may, upon reasonable notice to all parties, enter an order dismissing the claim for want of prosecution. See generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). The Arkansas Court of Appeals in Johnson held that a claim could be dismissed for lack of prosecution since there is no justiciable issue. The authority for doing so comes under Rule 13, which the Commission promulgated under Ark. Code Ann. § 11-9-205(a)(1)(A) (Repl. 2012). This provision authorizes it “[t]o make such rules and regulations as may be found necessary[.]” See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Johnson, supra. Contra Dillard v. Benton Cty. Sheriff’s Off., 87 Ark. App. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to Ark. Code Ann. § 11-9- 702(b)(4), the portion of the statute relating to additional benefits”). Certainly, such a claim could be re-filed if a justiciable issue arises, provided that all other prerequisites for a cognizable claim are met. At the hearing, The Claimant did not appear at the March 24, 2023, hearing after being duly served by U.S. certified mail, return receipt request. The return receipt was returned to the Commission with Claimant’s signature. The Respondents’ Attorney was present at the hearing. Under Johnson, supra, this

THIELEMIER – H200712 4 claim should thus be dismissed under Rule 13. Because of this finding, it is unnecessary to address the application of § 11-9-702(d). That, however, leaves the question of whether the dismissal should be with or without prejudice. The Commission possesses the authority to dismiss claims with prejudice. Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988). This includes claims dismissed under Rule 13. Johnson, supra. In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission wrote: “In numerous past decisions, this Commission and the Appellate Courts have expressed a preference for dismissals without prejudice.” (citing Professional Adjustment Bureau v. Strong, 75 Ark. 249, 629 S.W.2d 284 (1982); Hutchinson v. North Arkansas Foundry, Claim No. D902143 (Full Commission Opinion filed October 23, 1991)). In light of this preference, this claim should be dismissed without prejudice. IV. CONCLUSION In accordance with the findings of fact and conclusions of law set forth above, this claim is hereby dismissed without prejudice. IT IS SO ORDERED. ________________________________ STEVEN PORCH Administrative Law Judge