CLAIM NOS. D817315 D827798
EVALENE FERGUSON, EMPLOYEE, CLAIMANT v. BAXTER HEALTHCARE, EMPLOYER, RESPONDENT and AMERICAN MOTORISTS, INSURANCE CARRIER RESPONDENT
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 2, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by TOM HARPER, JR., Attorney at Law, Fort Smith, Arkansas.
[1] ORDER
[2] This matter comes on for review by the Full Commission on appeal by claimant from an order filed by an Administrative Law Judge on November 22, 1993 dismissing these claims for want of prosecution pursuant to Commission Rule 13.
[3] After reviewing this matter, we find that the Administrative Law Judge’s order was not a final, appealable order. Therefore, we find that claimant’s appeal should be dismissed.
[4] Although the Administrative Law Judge did not indicate whether the dismissal was with or without prejudice, the Commission prefers dismissals without prejudice. Laura Hutcheson v. North American Poultry, Full Commission opinion filed October 23, 1991 (
D902143). Orders of dismissal without prejudice are not final, appealable orders. Linwood Jenkins v. Georgia Pacific Corporation,
Full Commission opinion filed May 5, 1992 (
D806269). Since the November 22, 1993 order of dismissal is considered to be without prejudice to the subsequent refiling of the claims, we find that it was not a final, appealable order. Accordingly, we find that claimant’s appeal should be, and hereby is, dismissed.
[5] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[6] Commissioner Tatum concurs.
[7] CONCURRING OPINION
[8] I concur with the majority’s opinion that the Administrative Law Judge’s November 22, 1993 Order of Dismissal is to be considered a Motion to Dismiss without Prejudice. These claims were dismissed subject to being refiled. However, it should be clarified that our determination does not in anyway change, extend or abrogate the statute of limitations. The issue of whether claimant’s subsequent refiling of the claims is barred by the statute of limitations is not relevant to this appeal. This opinion and order does not in anyway affect the determination of the statute of limitations issue when and/or if it arises.
[9] Furthermore, it should be pointed out that the course taken by the Administrative Law Judge, the dismissal of this claim for want of prosecution pursuant to Rule 13, is appropriate in light of the history. These cases appear to be quite old. Claimant’s attorney, Mr. Rick Spencer, filed a claim letter on December 5, 1988. At that time, claimant was claiming compensation for benefits related to an injury sustained by an allergic reaction to chemical exposure (WCC Claim No.
D817135) and alleged carpal tunnel syndrome occurring prior to March 24, 1988. (WCC Claim No.
D817798).
[10] On January 17, 1989, the Administrative Law Judge issued a prehearing notice. At that time, he requested prehearing questionnaires. On January 26, 1989, Judge Newell corresponded with the attorneys attempting to obtain from claimant’s attorney a clarification of the issues and the specific benefits being claimed. Approximately six months later, on July 18, 1989, claimant’s prehearing questionnaire was submitted. Subsequently, various letters were exchanged among the parties culminating in an August 1989 letter from Judge Newell again asking claimant’s attorneys for the specifics of the claims.
[11] Subsequent to August 1989, there was no activity until March 16, 1991, approximately one year and eight months later. At that time, claimant asked for a hearing. The request was reiterated in April of 1991. In June of 1991, a prehearing conference was held. A June 4, 1991 letter from the Administrative Law Judge indicated that, surprisingly, the claim was not ready for a hearing. Again, the Administrative Law Judge requested that claimant’s attorney clarify the issues and requested that respondent respond to claimant’s discovery.
[12] On July 11, 1991, respondent filed responses to claimant’s discovery. On July 12, 1991, the Administrative Law Judge asked claimant’s attorney by letter why he had refused to respond to the previous requests for additional information between February of 1989 and March of 1991. Claimant’s attorney responded in the letter dated July 17, 1991. The Administrative Law Judge responded with a July 29, 1991 letter. From July 29, 1991, approximately twoyears passed in which there was no activity. On July 30,1993, claimant’s attorney requested a hearing and erroneously stated that he had not received respondent’s discovery responses. Yet, another prehearing conference was held on August 19, 1993. At that time, respondent’s attorneys requested that these claims be dismissed pursuant to A.C.A. §
11-9-702 (a)(4) because no hearing had been requested within six months of the last hearing or for want of prosecution. A prehearing order was filed on August 23, 1993. The Administrative Law Judge again indicated that this matter was not ready for hearing and encouraged the parties to consider settlement.
[13] In an October 1, 1993 letter, respondent again requested a dismissal. Claimant objected to the request for dismissal on October 6, 1993. The Administrative Law Judge then corresponded with the parties in a November 9, 1993 letter. At that time, the Administrative Law Judge informed the parties that all claimant’s claims would be dismissed if there were no further response within seven days. In a November 22, 1993 order, it was indicated that claimant’s attorney had not responded and the Administrative Law Judge dismissed this claim for want of prosecution.
[14] Subsequently, in November of 1993, claimant requested a hearing. The Administrative Law Judge responded in a December 7, 1993 letter informing claimant’s attorney that all claims had been dismissed. By a December 7, 1993 letter, claimant again demanded a hearing. Consistently, on December 13, 1993, claimant’s attorney refiled both claims. On December 20, 1993, claimant appealed the Administrative Law Judge’s dismissal to the Full Commission.
[15] The aforementioned information illustrates that this claim has not been diligently pursued. Claimant’s attorney let years pass without responding to correspondence or attempting to prosecute these claims. Furthermore, as a result of the Administrative Law Judge’s November 22, 1993 Order of Dismissal, claimant has the right to refile, which she has done. As a result of this refiling, claimant can litigate, among other things, whether these claims are barred by the statute of limitations. However, the statute of limitations issue is irrelevant to this order. As stated, our opinion and order does not have any effect on the statute of limitations or any other substantive issue.
[16] ALLYN C. TATUM, Commissioner
