Danny Andrew vs. Tfc, Inc

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203950 DANNY T. ANDREW, EMPLOYEE CLAIMANT TFC, INC., EMPLOYER RESPONDENT EMCASCO INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 23, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 22, 2023, in Little Rock, Pulaski County, Arkansas. Claimant, pro se, not appearing. Respondents represented by Mr. David C. Jones, Attorney at Law, Little Rock, Arkansas. I. BACKGROUND This matter comes before the Commission on a Motion to Dismiss by Respondents. A hearing on the motion was conducted on June 22, 2023, in Little Rock, Arkansas. No testimony was taken in the case. Claimant, who according to Commission records is pro se, failed to appear at the hearing. Without objection, the Commission’s file on the claim has been incorporated herein in its entirety by reference. In addition, Respondents’ Exhibit 1, forms, pleadings and correspondence related to the claim, consisting of 22 numbered pages, was admitted into evidence.

ANDREW – H203950 2 The record reflects the following procedural history: The First Report of Injury or Illness filed on June 7, 2022, reflects that Claimant purportedly injured the middle and index fingers of his left hand at work on March 22, 2022. Per the Form AR-2 that was also filed on June 7, 2022, Respondents accepted the claim as a medical-only one. Claimant filed a Form AR-C on May 25, 2022. Therein, he asserted that on March 22, 2022, the tips of the fingers referenced above were amputated by a brake press. Respondents covered the treatment that Claimant received. It was recommended that he undergo surgical treatment of his fingers. But on four separate occasions, he failed to show up to undergo the procedure. 1 The record reflects that no further activity occurred on the claim until March 1, 2023, when Respondents filed the instant motion, asking for dismissal of it under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012). On March 20, 2023, my office wrote Claimant, asking for a response to the motion within 20 days. The letter was sent by first-class and certified mail to the address listed for Claimant in the file and matching that on his Form AR-C. The certified letter was returned to the Commission, unclaimed, on June 1, 2023; but the first-class letter was not returned to the Commission. Regardless, no response from him was forthcoming. On May 18, 2023, I scheduled a hearing on Respondents’ motion for 1 The Arkansas Court of Appeals has held that if a claimant abandons his course of treatment, his healing period could be found to have ended with that abandonment. See, e.g., Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002).

ANDREW – H203950 3 June 22, 2023, at 10:00 a.m. at the Commission in Little Rock. Notice of this was sent to Claimant by certified and first-class mail at the same address as before. In this instance, Claimant signed for the certified letter on May 20, 2023; and the first-class letter to him was never returned. Thus, the evidence preponderates that he received the Notice of Hearing. The hearing on the Motion to Dismiss proceeded as scheduled on June 22, 2023. Again, Claimant failed to appear at the hearing. But Respondents appeared through counsel and argued for dismissal under the aforementioned authorities. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW After reviewing the record as a whole, to include documents and other matters properly before the Commission, the following Findings of Fact and Conclusions of Law are hereby made 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. 3. Claimant has failed to prosecute his claim. 4. Dismissal of this claim is thus warranted under AWCC R. 099.13. 5. The application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012) is moot and will not be addressed.

ANDREW – H203950 4 6. The claim is hereby dismissed without prejudice. 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 limitation period specified in subsection (b) of this section. In turn, AWCC R. 099.13 reads: 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, 929 S.W.2d 730 (1996). As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012) must prove their entitlement to the relief requested–dismissal of this claim–by a preponderance of the evidence. This standard means the evidence having greater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). As shown by the evidence recounted above, (1) the parties were provided reasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant has failed to pursue his claim because he has taken no further action in

ANDREW – H203950 5 pursuit of it (including appearing at the June 22, 2023, hearing to argue against its dismissal) since the filing of the Form AR-C on May 25, 2022. Thus, the evidence preponderates that dismissal is warranted under Rule 13. Because of this finding, the application of § 11-9-702(d) is moot and will not be addressed. That leaves the question of whether the dismissal of the claim 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). In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the Commission wrote: “In numerous past decisions, this Commission and the Appellate Courts have expressed a preference for dismissals without prejudice.” (Emphasis added)(citing Pr ofessional Adjustment Bureau v. Strong, 75 Ark. 249, 629 S.W.2d 284 (1982)). At the hearing, Respondents asked for a dismissal without prejudice. Based on the above authorities, I agree and find that the dismissal of this claim should be and hereby is entered without prejudice. 2 IV. CONCLUSION In accordance with the findings of fact and conclusions of law set forth above, this claim is hereby dismissed without prejudice. 2 “A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same cause of action.” BLACK’S LAW DICTIONARY 825 (abridged 5 th ed. 1983).

ANDREW – H203950 6 IT IS SO ORDERED. ________________________________ O. MILTON FINE II Chief Administrative Law Judge