Gabriel Corp

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303493 GABRIEL B. CORP., EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesboro, Craighead County, Arkansas. Claimant, pro se, not appearing. Respondents represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, Arkansas. I. BACKGROUND This matter comes before the Commission on the Motion to Dismiss by Respondents. A hearing on the motion was conducted on April 5, 2024, in Jonesboro, Arkansas. No testimony was taken in the case. Claimant, who according to Commission records is pro se, failed to appear at the hearing. Admitted into evidence were Commission Exhibit 1 and Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, consisting of nine and seven pages, respectively. The record reflects the following procedural history: Per the First Report of Injury or Illness dated June 9, 2023, Claimant purportedly suffered an injury to his right knee at work on May 22, 2023, while he

CORP – H303493 2 was welding. According to the Form AR-2 that was filed on June 14, 2023, Respondents denied the claim in its entirety. Claimant filed a Form AR-C on or about May 31, 2023, concerning this alleged injury. Therein, he requested the full range of initial benefits. No hearing request accompanied this filing. Respondents’ counsel entered his appearance by way of letter on June 20, 2023. The record reflects that nothing further took place on the claim until January 9, 2024. On that date, Respondents filed the instant motion, asking for dismissal of the claim—ostensibly under AWCC R. 099.13, since it asserted “lack of prosecution” as the basis for dismissal. The file was assigned to me on February 2, 2024; and on February 5, 2024, 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 Lake St. Louis, Missouri address of Claimant listed in the file and his Form AR-C. The United States Postal Service (“USPS”) was unable to confirm whether Claimant claimed the certified letter; but the first-class letter was not returned. However, no response from Claimant to the motion was forthcoming. For that reason, on February 29, 2024, a hearing on the Motion to Dismiss was scheduled for April 5, 2024, at 12:00 p.m. at the Craighead County Courthouse in Jonesboro. The notice was sent to Claimant via first-class and certified mail to the same address as before. Once again, USPS could not

CORP – H303493 3 confirm that Claimant claimed the certified letter; but the one sent by first-class mail was not returned to the Commission. The hearing on the Motion to Dismiss proceeded as scheduled on April 5, 2024. Again, Claimant failed to appear at the hearing. But Respondents appeared through counsel and argued for dismissal under the aforementioned authority. 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 matter. 2. The parties were provided reasonable notice of the Motion to Dismiss and of the hearing thereon. 3. The evidence preponderates that Claimant has failed to prosecute his claim under AWCC R. 099.13. 4. The Motion to Dismiss is hereby granted; this claim for initial benefits is hereby dismissed without prejudice under AWCC R. 099.13.

CORP – H303493 4 III. DISCUSSION 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, 85, 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 the 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 pursuit of it (including appearing at the April 5, 2024, hearing to argue against its dismissal) since the filing of his Form AR-C on May 31, 2023. Thus, the evidence preponderates that dismissal is warranted under Rule 13. That leaves the question of whether the dismissal of the claim should be with or without prejudice. The Commission possesses the authority to dismiss

CORP – H303493 5 claims with prejudice. Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988). The Commission and the appellate courts have expressed a preference for dismissals without prejudice. See Professional Adjustment Bureau v. Strong, 75 Ark. 249, 629 S.W.2d 284 (1982)). Respondents at the hearing asked for a dismissal without prejudice. I agree and find that the dismissal of this claim should be and hereby is entered without prejudice. 1 IV. CONCLUSION In accordance with the Findings of Fact and Conclusions of Law set forth above, this claim for initial benefits is hereby dismissed without prejudice. IT IS SO ORDERED. ________________________________ O. MILTON FINE II Chief Administrative Law Judge 1 “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).