BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION WCC NO. G103126 CHRIS CURLEY, EMPLOYEE THERMO FISHER SCIENTIFIC, EMPLOYER TRAVELERS PROPERTY & CASUALTY CO., CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED AUGUST 8, 2016 Hearing before Administrative Law Judge O. Milton Fine II on August 3, 2016 in Mountain Home, Baxter County, Arkansas. Claimant, pro se, not appearing. Respondents represented by Ms. Amy C. Markham, 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 August 3, 2016 in Mountain Home, Arkansas. No testimony was taken in the case. Claimant, who according to Commission records is pro se, failed to appear at the hearing. At Respondents request, the Commission file on this claim has been incorporated herein in its entirety by reference. The record reflects the following procedural history: On January 3, 2011, Claimant allegedly sustained a compensable injury in the form of an abdominal hernia. Respondents accepted this injury as compensable and paid medical and temporary total disability benefits pursuant thereto. Claimant
2 underwent two surgeries, and later returned to work. Respondents filed a Form AR- 4 on March 27, 2013, reporting that they had closed the claim. On May 11, 2015, Claimant filed a Form AR-C. Therein, he requested additional medical and temporary total disability benefits, along with permanent partial and permanent and total disability benefits. Thereafter, on May 19, 2015, Respondents requested a hearing primarily on the issue of whether or not the statute of limitations has expired in this matter. The file was assigned to me on May 26, 2015. However, without objection, the file was returned to the Commission s general files on June 1, 2015. The record reflects that no further action was taken on the claim until May 16, 2016, when Respondents filed the instant motion to dismiss. Therein, they alleged that dismissal of the claim was warranted under AWCC R. 099.13 because no bona fide request for a hearing had been made during the previous six months.. On May 17, 2016, I wrote Claimant, asking for a response to the motion within 15 days. This letter was sent by both first-class and certified mail to the address for Claimant noted on the file and in the Form AR-C: 367 MC 6034, Yellville, Arkansas 72687. Claimant signed for the certified letter on May 27, 2016, and the first-class letter was not returned. However, no response to the motion was forthcoming. On June 8, 2016, I notified the parties by letter of the scheduling of the motion to dismiss for August 3, 2016 at 2:00 p.m. at the Mountain Home City Hall Council Chambers. Claimant declined to claim the certified letter, and it was returned to the Commission on July 6, 2016. But again, the first-class letter, sent to the same address as before, was not returned.
3 The hearing proceeded as scheduled on August 3, 2016. Claimant failed to appear at the hearing. But Respondents appeared through counsel and argued for dismissal under Rule 13. 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 warranted under AWCC R. 099.13. 5. The claim is hereby dismissed without prejudice. AWCC R. 099.13 reads: III. DISCUSSION 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)(discussing, inter alia, Rule 13).
4 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 August 3, 2016 hearing to argue against its dismissal) since the filing of the Form AR-C on May 11, 2015. Thus, 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 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 AWCC 226, 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 Professional Adjustment Bureau v. Strong, 75 Ark. 249, 629 S.W.2d 284 (1982)). Based on the above authorities and in light of the evidence at bar, I find that the dismissal of this claim should be and hereby is entered 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.
5 IT IS SO ORDERED. O. MILTON FINE II Administrative Law Judge