Kenneth Wrinkle

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306658 KENNETH WRINKLE, JR., EMPLOYEE CLAIMANT LEXICON INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, Pulaski County, Arkansas. Claimant, pro se, not appearing. Respondents represented by Ms. Melissa Wood, Attorney at Law, North 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 July 11, 2024, 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. Admitted into evidence without objection was Commission Exhibit 1 and Respondents’ Exhibit 1, forms, pleadings, and correspondence related to this claim, consisting of twenty (20) and nine (9) pages, respectively.

WRINKLE – H306658 2 The record reveals the following procedural history: The First Report of Injury or Illness, filed on October 17, 2023, reflects that Claimant purportedly suffered an injury to his right shoulder at work on April 1, 2023. Per the Form AR-2 filed on October 18, 2023, Respondents controverted the claim in its entirety. On October 11, 2023, through then-counsel Tanner Thomas of the Rainwater, Holt & Sexton Law Firm, Claimant filed a Form AR-C, alleging that he was entitled to the full range of initial and additional benefits in connection with his alleged shoulder injury. No hearing request accompanied this filing. Respondents’ counsel entered her appearance on October 17, 2023. Respondents on April 15, 2024, filed its first Motion to Dismiss in this matter. The file was assigned to me; and on April 18, 2024, my office sent correspondence to Claimant’s co-counsel, Laura Beth York (Thomas had since left the firm), asking for a response to the motion within 20 days. But on April 19, 2024, Respondents’ counsel wrote me, asking to withdraw the motion. This was permitted. The file was returned to the Commission’s general files. On April 24, 2024, York moved to withdraw from her representation of Claimant. In an Order entered on May 14, 2024, the Full Commission granted the motion under AWCC Advisory 2003-2. On May 15, 2024, Respondents filed the instant Motion to Dismiss under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012), contending that “Claimant has not sought any type of bona fide hearing before the Workers’

WRINKLE – H306658 3 Compensation Commission over the last six months.” The file was reassigned to me; and on May 16, 2024, my office wrote Claimant, requesting a response to the motion within 20 days. This correspondence was sent by both certified and first- class mail to the DeWitt address for Claimant listed in the file and on his Form AR- C. The certified letter was returned to the Commission, undelivered, on June 14, 2024; but the first-class correspondence was not returned to the Commission. However, no response by Claimant to the motion was forthcoming. On June 6, 2024, a hearing on Respondents’ motion was scheduled for July 11, 2024, at 11:00 a.m. at the Commission in Little Rock. The Notice of Hearing was sent to Claimant by certified and first-class mail to the same address as before. Once again, the certified letter went unclaimed, and was returned to the Commission on July 1, 2024. But as before, the one sent via first class was not returned. The hearing proceeded as scheduled on July 11, 2024. Claimant failed to appear at the hearing. But Respondents appeared through counsel and argued for dismissal under the provisions cited above. 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):

WRINKLE – H306658 4 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 this claim. 4. Dismissal of this claim is warranted under AWCC R. 099.13. 5. The claim is hereby dismissed without prejudice. 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). The evidence adduced at the hearing shows that Claimant has taken no action in pursuit of his claim since the filing of his Form AR-C on October 11, 2023. Moreover, he failed to appear at the hearing to argue against dismissal of the claim, despite the evidence showing that both he and Respondents were provided reasonable notice of the Motion to Dismiss and of the hearing thereon. Thus, the evidence preponderates that dismissal is warranted under Rule 13. Because of this finding, it is unnecessary to address the application of § 11-9-702.

WRINKLE – H306658 5 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). 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 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. ________________________________ 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).