BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JESSICA SIDERS, EMPLOYEE RIVERVIEW BEHAVIORAL HEALTH, LLC, EMPLOYER RESPONDENT

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JESSICA SIDERS, EMPLOYEE CLAIMANT RIVERVIEW BEHAVIORAL HEALTH, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE CO./ ESIS, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE FILED NOVEMBER 10, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, on November 3, 2015, in Little Rock, Pulaski County, Arkansas. The unrepresented claimant did not appear. The respondents were represented by HONORABLE ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE This matter comes on for consideration of the respondents motion to dismiss for failure to prosecute. A hearing was conducted in this matter on November 3, 2015, in Little Rock, Arkansas. The respondents were represented at the hearing by Attorney Eric Newkirk. The record consists of the transcript of the November 3, 2015, hearing and the exhibits contained therein. For the reasons discussed herein, I find that the respondents motion to dismiss should be granted. However, I also find that this dismissal should all be without prejudice to refiling within the applicable limitations period specified in Arkansas Code Annotated section DISCUSSION The claimant sustained admittedly compensable injuries on or about January 8, 2015, while attempting to restrain a

2 2 patient. (R. Exh. 1 p. 4) When a dispute arose over certain benefits, attorney Greg Giles filed at the Commission on or about April 13, 2015, a claim for additional benefits on the claimant s behalf. (R. Exh. 1 p. 2) Although Mr. Giles requested a hearing, he later determined in June of 2015 that a hearing was premature because the claimant was scheduled for an independent medical evaluation. (R. Exh. 1 p. 6-17) However, in August of 2015, the Full Commission granted Mr. Giles leave to withdraw as the claimant s attorney. Mr. Giles request to withdraw cited the claimant s failure to respond to Mr. Giles correspondence and the claimant s failure to appear for a re-scheduled independent medical evaluation. (R. Exh. 1 p ) Mr. Newkirk on August 24, 2015, filed the respondents motion to dismiss. (R. Exh. 1 p. 1) The respondents request consideration of a possible dismissal with prejudice, or alternatively, a dismissal without prejudice. (T. 9-10) Issue 1: Reasonable Notice To All Parties Commission Rule provides in 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. In the present case, I find that all parties had reasonable notice of the pending motion to dismiss and the

3 3 hearing set thereon. Attorney Eric Newkirk filed the motion and appeared at the hearing on behalf of the respondents. He therefore clearly had notice. Although Ms. Siders did not appear at the hearing, I note that the Certificate of Service on the respondents motion in evidence indicates that a copy of that motion and the accompanying brief were mailed to the claimant on August 19, 2015, at the same address as used in the Commission s subsequent correspondence. (Comm. Exh. 1 p. 3; R. Exh. 1 p. 5) A letter that this examiner mailed to the claimant at that address by Certified Mail on August 26, 2015, was returned by the post office as Unclaimed on or about September 21, (Comm. Exh. 1 p. 2) However, postal records in evidence indicate that Jessica Siders on September 28, 2015, signed for receipt of a Notice of Hearing that my office mailed to her by both First Class and Certified Mail on September 21, (Comm. Exh. 1 p. 3-7) Under these circumstances, where Mr. Newkirk appeared at the hearing, and Ms. Siders was provided a copy of the respondents motion by First Class Mail and was provided a Notice of Hearing by both Certified Mail and First Class Mail, I find that both parties had reasonable notice of both the respondents pending motion to dismiss and of the hearing set for November 3, 2015, to consider that motion. Issue 2: Dismissal For Failure To Prosecute

4 4 After considering the respondents motion, Mr. Giles letter in evidence indicating that Ms. Siders failed to respond to his correspondence and failed to appear for her independent medical evaluation, and Ms. Siders similar lack of response to the motion to dismiss filed by the respondents, I find on this record that the claimant has decided not to prosecute her claim. The respondents motion to dismiss for failure to prosecute under these circumstances should be, and hereby is, granted. The respondents request that consideration be given to a possible dismissal of this claim with prejudice to refiling. However, I note that the Commission and the Courts prefer dismissal without prejudice instead of dismissal with prejudice. See generally Richard K. White v. American Fuel Cell & Coated Fabrics, Full Workers Compensation Commission, Opinion filed April 1, 2008 (F209049) and cases cited therein. In applying that principle, the Arkansas Court of Appeals nevertheless affirmed a dismissal with prejudice in Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730 (1996). In Johnson, the evidence established that the claimant s attorney deliberately and brazenly disregarded a previous Commission decision in the claim by refiling the claim even though all appropriate benefits were being paid and no justiciable issue existed between the parties.

5 5 In Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988), the Court affirmed the Commission s dismissal of a claim with prejudice pursuant to Commission Rule and ARCP Rule 37(d) for the claimant s failure to timely answer interrogatories notwithstanding an ALJ s order that discovery be completed within 45 days of the order. That order specifically warned the parties that failure to timely complete discovery would subject the offending party to sanctions. In Richard K. White v. American Fuel Cell Coated Fabrics, Full Workers Compensation Commission, Opinion filed April 1, 2008 (F209049), the Full Commission similarly affirmed an ALJ s dismissal of a claim where the claimant refused to participate in discovery. However, in Charles Neal v. Cajun Operating Co. d/b/a Church s Chicken, Full Workers Compensation Commission, Opinion filed October 16, 2008 (F612693), the Full Commission, citing its preference for dismissal without prejudice pursuant to Rule , reversed an ALJ s dismissal with prejudice even though the claimant (1) failed to attend a deposition after being directed to do so by the ALJ, (2) failed to timely answer discovery requests after being directed by the ALJ to do so, (3) failed to attend a scheduled hearing, and (4) failed to timely offer, within the twenty days allowed by the ALJ, medical evidence to establish that the claimant was in fact too ill to attend

6 6 the missed hearing. The Full Commission in Neal held that the ALJ s dismissal pursuant to Commission Rule should have been without prejudice. By comparison in the present case, this examiner has never entered - and never been requested to enter - a discovery order in this case relating to Ms. Siders IME or her deposition or any other discovery matters. I therefore find the circumstances of this case distinguishable from the relevant facts in Loosey v. Osmose Wood Preserving Co., supra., where the claimant failed to comply with a discovery order. In addition, Ms. Siders has never refused in the presence of this examiner to cooperate in the future with any legitimate discovery requests or orders that may be entered in this case. I therefore conclude that this case is also factually distinguishable from Richard K. White v. American Fuel Cell Coated Fabrics, supra., where the claimant stated directly to the ALJ that he was refusing to attend his own deposition. Since no order has ever been requested or entered in this case regarding the taking of Ms. Siders deposition or IME, I likewise cannot say that Ms. Siders has ever deliberately and brazenly disregarded any prior Commission or Court order. Thus, this case is also distinguishable from the circumstances presented in Johnson v. Triple T Foods, supra. Under these circumstances, I find that the dismissal granted herein for failure to prosecute should be without

7 7 prejudice to refiling within the applicable limitations period - consistent with the preference of the Full Commission and the Arkansas Courts. ORDER For the reasons discussed herein, the respondents motion to dismiss for failure to prosecute should be, and hereby is, granted. This dismissal shall be without prejudice to refiling within the appropriate limitations period in Arkansas Code Annotated section If they have not already done so, the respondents are directed to pay the court reporter, Pam St. Clair, fees and expenses within thirty (30) days of receipt of the invoice. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge