CLAIM NO. E407009
SHIRLEY OLSEN, EMPLOYEE, CLAIMANT v. CANNON EXPRESS, EMPLOYER, RESPONDENT and EMPLOYERS’ SELF-INSURED SERVICES, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 20, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by CONSTANCE G. CLARK, Attorney at Law, Fayetteville, Arkansas.
[1] ORDER
[2] Claimant appeals an order of dismissal filed by the Administrative Law Judge on June 24, 1996.
[3] This case was set for a hearing on June 19, 1996. Claimant requested that the hearing be cancelled. By correspondence dated June 19, 1996, respondent requested that this claim be dismissed for lack of prosecution. In a letter to the Administrative Law Judge dated June 21, 1996, claimant objected and requested a hearing on respondent’s motion to dismiss. Instead of holding a hearing, the Administrative Law Judge summarily dismissed claimant’s claim on June 24, 1996. [4] The Administrative Law Judge’s order of dismissal does not state whether the dismissal is with or without prejudice or whether the dismissal is pursuant to Commission Rule 13 or Ark. Code Ann. §
11-9-702 (a)(4) (Repl. 1996). Notwithstanding the above, we find that the Administrative Law Judge’s order of dismissal must be vacated and this matter remanded for additional proceedings. [5] We have previously held that the parties must be afforded reasonable notice and an opportunity to be heard before a claim may be dismissed pursuant to Commission Rule 13. Laura Hutchinson v. North Arkansas Poultry, Full Commission opinion filed October 23, 1991 (
D902143). Furthermore, Ark. Code Ann. §
11-9-702 (a)(4) (Repl. 1996), by specific language, requires that a hearing be held before a claim may be dismissed. Thus, since claimant clearly requested a hearing on respondent’s motion to dismiss, a hearing should have been held. [6] Accordingly, we find that the Administrative Law Judge’s order of dismissal should be, and hereby is vacated. Additionally, this matter is remanded to the Administrative Law Judge for proceedings consistent with this opinion. [7] IT IS SO ORDER.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[8] Commissioner Holcomb concurs.
[9] CONCURRING OPINION
[10] Although I concur with the majority’s finding that a hearing is statutorily necessary prior to entering an order of dismissal for failure to prosecute, I write this concurring opinion to explain why it would be proper to dismiss this claim after the requisite hearing has been held.
[11] The present claim has been pending since the summer of 1994. A prehearing conference was initially held in August of 1994, however, the case was not set for a hearing at that time. A second prehearing conference was conducted on November 15, 1995 and a hearing was scheduled for January 24, 1996. The issues to be determined at the January, 1996 hearing were claimant’s entitlement to additional temporary total disability benefits and medical expenses. Prior to the hearing, claimant discharged her attorney, Mima Kilgore, and hired Attorney Jay Tolley. Mr. Tolley requested a continuance of the January 24th hearing which was granted. A third prehearing telephone conference was conducted on April 24, 1996 and the case was again scheduled for a hearing to take place on June 19, 1996. The issues to be decided at the June, 1996 hearing were claimant’s entitlement to temporary total disability benefits, medical expenses, permanent impairment benefits, and wage loss disability. On June 18, 1995, claimant’s attorney, Mr. Tolley, wrote to the Administrative Law Judge advising that the claimant had found a job and asked that the hearing scheduled for June 19, 1996 be canceled. On June 19, 1996, counsel for respondent moved that the claim be dismissed for lack of prosecution. [12] In my opinion, it is obvious that the claimant has failed to prosecute her claim. The Commission should not be required to maintain open files on claimants who fail to pursue their claims. The Commission’s docket is unwieldy enough without it being cluttered by stale claims the parties never intend to pursue. Accordingly, based upon the facts in this case, it is my opinion that if the requisite hearing had been held, the Administrative law Judge acted properly in dismissing the claim. [13] ALICE L. HOLCOMB, Commissioner