CLAIM NO. F612693
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 16, 2008
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondent No. 1 represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE BRANDON L. CLARK, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals the May 7, 2008, opinion of an Administrative Law Judge, which dismissed the claimant’s claim with prejudice for failing to answer discovery requests. We find that the Administrative Law Judge erroneously dismissed the instant claim with prejudice and, therefore, the decision of the Administrative Law Judge is
hereby reversed.
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I. History
The respondent filed a Workers’ Compensation Form 1 with the Commission on November 20, 2006, for an incident that occurred on November 15, 2006. On November 30, 2006, the respondent filed a Form AR-2 indicating that the claim has been controverted. On April 20, 2007, the claimant submitted a request for hearing and indicated he was willing to mediate the claim. However, the carrier refused to participate in mediation and the file was assigned to the Administrative Law Judge on June 5, 2007. On June 8, 2007, Prehearing Questionnaire Notices and Prehearing Questionnaires were mailed to the parties. The claimant failed to file a response to the Prehearing Questionnaire and the file was returned to the Commission’s general files on July 31, 2007. On September 6, 2007, the claimant filed his Prehearing
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Questionnaire response with the Commission and the file was reassigned to the Administrative Law Judge on September 11, 2007. The respondents were given 10 days to file a response to the Prehearing Questionnaire. Seven days after the deadline for the Prehearing Questionnaire, the respondents’ attorney sent a letter to the Commission dated September 28, 2007 indicating that the matter had been tentatively settled. By letter dated October 4, 2007, respondents’ attorney indicated that the terms of the settlement had not been finalized and, at that time, filed a Prehearing Questionnaire response, 13 days after the deadline for filing the responses. On October 5, 2007, a Prehearing Conference Notice was sent to the parties, scheduling a prehearing telephone conference. The conference was held on November 27, 2007, at which time the claimant requested a
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continuance to hire an attorney and was given 30 days to file responses to respondents’ discovery requests. Another conference was scheduled for January 8, 2008. By letter dated December 21, 2007, the respondents joined the Second Injury Fund as a party to the claim, and pursuant to the Fund’s request, the prehearing telephone conference was rescheduled for February 12, 2008. The conference was held and the matter was scheduled for hearing on April 2, 2008. By letter from Judge Webb dated March 19, 2008, the claimant was advised that if he failed to contact her office or appear at the deposition scheduled for March 25, 2008, it would result in dismissal of his claim with prejudice. The claimant was further directed to comply with all discovery requests on or before March 25, 2008. On March 26, 2008, the Fund filed a Motion for Dismissal,
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asserting that the claimant failed to provide responses to the discovery requests of the Second Injury Fund and that the claimant failed to appear at the deposition scheduled for March 25, 2008. By letter dated March 28, 2008, from Judge Webb, the claimant was sent a copy of the SIF’s Motion for Dismissal and advised that the Motion would be addressed at the upcoming hearing scheduled for April 2, 2008. By letter dated March 31, 2008, respondent #1 joined in the Fund’s Motion to Dismiss for the claimant’s failure to appear at the scheduled deposition. At that time, Respondent #1 further asserted that the claimant had failed to answer any of the Interrogatories propounded upon him.
On April 2, 2008, at 12:15 p.m., the claimant called Judge Webb’s office and advised that he was sick and unable to attend the hearing scheduled that day at 1:30 p.m. Respondent
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#1 and respondent #2 appeared at the hearing scheduled for that day and moved again at that time for dismissal of this claim. By letter dated April 2, 2008, from Judge Webb, the claimant was given 20 days to provide written documentation from his health care provider to support his reasons for failing to appear at the hearing and that if he failed to provide said documentation, an order of dismissal with prejudice would be entered. On April 25, 2008, the claimant called the Administrative Law Judge’s office and advised that he would fax his documentation to the Commission that day. However, as of the date of the Administrative Law Judge’s opinion, no documentation had been received from the claimant.
II. Adjudication
The Administrative Law Judge dismissed the claim based on both Rule 13 and Ark. Code Ann. § 11-9-702(a)(4). In making this finding,
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the Administrative Law Judge cited the claimant’s failure to prosecute his claim and failing to respond to discovery requests. Based on ade novo review of the record, we find that the harsh remedy of dismissal with prejudice is not allowed under the plain language of Ark. Code Ann. § 11-9-702(a)(4) and is not warranted under Arkansas Workers’ Compensation Commission Rule 13.
Arkansas Code Annotated § 11-9-702(a)(4) states:
If within six (6) months after the filing of a claim for compensation no bona fide request for a hearing has been made with respect to the claim, the claim may, upon motion and after a hearing, be dismissed without prejudice to the refiling of the claim within limitation periods specified in subdivisions (a)(1)-(3) of this section. [emphasis added]
For there to be a valid dismissal using § 11-9-702(a)(4), the claimant must have failed to request a hearing within six months of the filing of the claim. Therefore, the instant claim may not be dismissed under § 11-9-702(a)(4), as there was a request for a hearing made by the claimant on April 20, 2007, within the six-month time frame allowed by § 11-9-702(a)(4). Furthermore, even if the claimant had not requested the hearing within six months, the statute only grants the power to dismiss without prejudice, not with prejudice.
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The Administrative Law Judge also cited Arkansas Workers’ Compensation Rule 13 as a basis for the dismissal with prejudice for want of prosecution. The applicable language in Rule 13 reads as follows:
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.
While the Commission does have the authority to dismiss a claim with prejudice without violating the claimant’s due process right,Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W. 2d 402
(1988), the Commission has previously held that, with respect to dismissals under Commission Rule 13, it prefers dismissals without prejudice. See, Richard Bice v. Bromley Auto Parts, Full Commission Opinion filed August 7, 1997 (E600073); Terry Holman v. Form-All, Full Commission Opinion filed April 17, 1997 (E214277); Terri Francis v. EOAWashington County Headstart, Full Commission Opinion filed November 18, 1996 (E217992); Laura Hutcheson v. North Arkansas Poultry, Full Commission Opinion filed October 23, 1991
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(D902143); and James Woods v. Arkansas Waste Disposal, Full Commission Opinion filed May 2, 1990 (D015483). Furthermore, the Arkansas Supreme Court has also consistently indicated a preference for dismissal without prejudice. See, Professional Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W. 2d 284 (1982); Cory v. Mark Twain Life Insurance Company, 286 Ark. 20, 688 S.W. 2d 934 (1985).
After consideration of the claimant’s appeal, we find that the decision of the Administrative Law Judge to dismiss this claim with prejudice was not the appropriate remedy. This claim should have been dismissed without prejudice. Therefore, we reverse the Administrative Law Judge’s Order of Dismissal with prejudice.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. This case should be dismissed with prejudice due to the claimant’s blatant failure to comply with discovery. The Commission does have the authority to dismiss a claim with prejudice without violating the claimant’s due process right. Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988).
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_______________________________ KAREN H. McKINNEY, Commissioner
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