SULLIVAN v. R. L. JOHNSON SON, INC., 1994 AWCC 32

CLAIM NO. D800715

JOHN SULLIVAN, EMPLOYEE, CLAIMANT v. R. L. JOHNSON SON, INC., EMPLOYER, RESPONDENT and FIREMAN’S FUND INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 16, 1994

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE WORTH CAMP, Attorney at Law, El Dorado, Arkansas.

Respondents represented by the HONORABLE ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission on the respondents’ motion to dismiss the claimant’s appeal. After careful consideration of the respondents’ motion, the claimant’s response, and all other matters properly before the Full Commission, we find that the claimant’s appeal must be dismissed.

[3] The claimant sustained an admittedly compensable injury on December 29, 1987. The respondents accepted the compensability of the claim and paid compensation. On June 27, 1990, the claimant filed a claim for compensation with the Commission, and he filed a supplemental claim for compensation on December 14, 1990. However, the claimant and the respondents were pursuing a third-party claim, and no hearing was held. On December 18, 1992, the administrative law judge filed an order approving the settlement of the third party claim. Then, on July 7, 1993, the claimant filed another claim for compensation. However, no action was taken on the claim, and, on December 9, 1993, the Commission received a letter from the respondents asking that the claim be dismissed for want of prosecution. On January 19, 1994, the administrative law judge filed an order dismissing the claim without prejudice under Commission Rule 13 for the failure to prosecute. On February 22, 1994, the claimant filed a motion to reopen with the administrative law judge, challenging the validity of the order of dismissal for various reasons. However, in a letter dated March 23, 1994, the administrative law judge denied the claimant’s motion to reopen, apparently on the finding that the January 19, 1994, order had become final. Nevertheless, in his March 23, 1994, letter, the administrative law judge noted that the January 19, 1994, order did not prevent the claimant from refiling his claim. On April 22, 1994, the claimant filed a petition asking the Full Commission to review the administrative law judge’s January 19, 1994, order and the March 23, 1994, order.

[4] With regard to the administrative law judge’s January 19, 1994, order, this Commission has previously held on numerous occasions that orders of dismissal for want of prosecution under Commission Rule 13 which are without prejudice are not appealable orders. Mary Louise Wilbert v.Quarter Note, Full Workers’ Compensation Commission, Mar. 25, 1994 (Claim No. E021758); Randy McAbee v. TCCIllinois/Polar Express, Full Workers’ Compensation Commission, Mar. 25, 1994 (Claim No. E214857); Wayne Johnsonv. Triple T Foods, Full Workers’ Compensation Commission, Mar. 23, 1994 (Claim No. E219745); Luster Stowers v. OzarksElectric, Full Workers’ Compensation Commission, Dec. 10, 1992 (Claim No. D902731); Linwood Jenkins v. Georgia-PacificCorporation, Full Workers’ Compensation Commission, May 5, 1992 (Claim No. D806269); Donald Phylant v. R. L.Johnson Son, Inc., Full Workers’ Compensation Commission Jun. 23, 1987 (Claim No. D505505); David Nale v. DavisConstruction Co., Full Workers’ Compensation Commission, Jun. 23, 1987 (Claim No. D513236). This Commission’s power and duties are determined by and derived from the Arkansas Workers’ Compensation Law. Ward School Bus Manufacturing v.Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977); Maxcy v. JohnF. Beasley Construction Co., 228 Ark. 253, 306 S.W.2d 849
(1957); see also, J. L. Williams Sons. Inc. v. Smith,205 Ark. 604, 170 S.W.2d 82 (1943). Consequently, this Commission’s power and duty to review an order of an administrative law judge, and the right of a party to insist that we review such a decision, must be determined by reference to the Arkansas Workers’ Compensation Law. CooperIndustrial Products v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982). With regard to this such review, Ark. Code Ann. § 11-9-704 (b)(6) (1987) provides the following:

If an application for review is filed in the office of the Commission within thirty (30) days from the date of the receipt of the award, the full commission shall review the evidence or, if deemed advisable, hear the parties, their representatives, and witnesses, and shall make awards, together with its rulings of law. . . . [Emphasis added].

[5] In addition, Ark. Code Ann. § 11-9-711 (a)(1) (1987) provides the following:

A compensation order or award of an administrative law judge or a single commissioner shall become final unless a party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for a review by the full commission of the order or award. [Emphasis added].

[6] Consequently, the Arkansas Workers’ Compensation Law allows a party to apply for, and to receive, a review of “compensation orders and awards” as a matter of right. The terms “compensation order” and “award” refer only to orders which either grant or deny compensation. See, Baldwin v.Club Products Co., 302 Ark. 404, 790 S.W.2d 166 (1990);Walker v. J J Pest Control, 270 Ark. 941, 606 S.W.2d 597
(Ark.App. 1980); see also, Royal Insurance Co. v.Rousselot, 720 S.W.2d 3 (Mo.App. 1986); Demars v. RobinsonKing Floors, Inc., 256 N.W.2d 501 (Minn. 1977); Riggle v.Board of County Commissioners, 284 So.2d 194 (Fla. 1973);Neal v. Krey Packing Company, 459 S.W.2d 527 (Mo. 1970). This is consistent with the general rule that workers’ compensation orders are ordinarily reviewable only at the point where they award or deny compensation. Tec v.Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992); Stafford v.Diamond Construction Co., 31 Ark. App. 215, 793 S.W.2d 109
(1990); Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989); Hope Brick Works v. Welch, 27 Ark. App. 90, 768 S.W.2d 37 (1989); Mid-State Construction Co. v.Sealy, 26 Ark. App. 186, 761 S.W.2d 951 (1988); Hernandez v.Simmons Industries, 25 Ark. App. 25, 752 S.W.2d 45 (1988);Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 589 (1989); Banquet Foods v. McGlothin, 26 Ark. App. 130, 760 S.W.2d 880 (1988); see also, 3 A. Larson, Workmen’sCompensation Law, § 80.11.

[7] Consequently, under the provisions of the Arkansas Workers’ Compensation Law, a party may apply for review of an administrative law judge’s decision as a matter of right only at the point when the decision has the effect of either granting or denying compensation. A dismissal with
prejudice ends the litigation and acts as a final adjudication, so a dismissal with prejudice, in effect, acts as a denial of compensation. See, Hubbard v. The ShoresGroup, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Hicks v.Allstate Insurance Co., 304 Ark. 101, 799 S.W.2d 809 (1990). Consequently, a party may apply to the Full Commission for review of a dismissal with prejudice as a matter of right. However, a dismissal without prejudice, in itself, is not a final adjudication, for the claimant may refile the claim and pursue litigation of the claim on its merits. See,Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991); Magness v.McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991); Benedict v.Arbor Acres Farm Inc., 265 Ark. 575, 579 S.W.2d 605 (1979). Consequently, a dismissal without prejudice, in itself, does not act as a denial of compensation, and a party may not obtain review of such a dismissal as a matter of right.

[8] As an administrative body statutorily vested with the ultimate power to adjudicate disputes and with the authority to delegate that power to administrative law judges, we also possess the discretionary authority to review any action by an administrative law judge if necessary to assure that the delegated authority has been properly administered. Ark. Code Ann. § 11-9-207 (a)(1) (1987); Ark. Code Ann. § 11-9-204
(b)(2) (1987); Riggle v. Board of County Commissioners,284 So.2d 194 (Fla. 1973); see also, 2 Am. Jur. 2d, Administrative Law, § 541. However, the dismissal of a claim under Ark. Code Ann. § 11-9-702 (a)(4) (1987) or the dismissal of a claim under Commission Rule 13 without prejudice for want of prosecution does not warrant our review. Since the dismissal is without prejudice to the refiling of the claim, any decision we reach would have no legal effect, for, regardless of whether we affirm or reverse the administrative law judge’s order the claimant would be free to refile and prosecute his claim. Certainly, a dismissal without prejudice for want of prosecution may be combined with other action by the administrative law judge which, in practical effect, forecloses any relief that the claimant might be entitled to receive due to the combined effects of the actions. However, until the administrative law judge takes additional action which effectively forecloses such relief when combined with the order of dismissal, the order is not reviewable.

[9] In this regard, the fact that the claimant asserts that the claim may be barred by the statute of limitations is not sufficient, in itself, to find that he is foreclosed from receiving any relief. As the administrative law judge correctly noted in his March 23, 1994, letter, the order of dismissal without prejudice does not prevent the claimant from refiling the claim. If he does refile the claim and the respondents do raise the statute of limitations, all matters pertaining to that issue, including the propriety of the administrative law judge’s order of dismissal, can be properly developed and presented to the administrative law judge and this Commission if necessary.

[10] Finally, we point out that costs may be imposed against a party who institutes a claim without reasonable grounds. Ark. Code Ann. § 11-9-714 (1987). Furthermore, this Commission can impose sanctions against any attorney who files a claim without reasonable grounds to do so, including the imposition of the reasonable costs incurred by the other party as a result of the filing of the claim. Ark. Code Ann. § 11-9-717 (Supp. 1993). Certainly, a claimant has every right to refile a claim where some meritorious controversy exists which creates the need for adjudication by the Commission. However, a claimant may not summarily refile a claim merely because an administrative law judge dismisses a claim under either Ark. Code Ann. §11-9-702 (a)(4) (1987) or Commission Rule 13.

[11] Accordingly, for the reasons discussed herein, we find that the claimant’s appeal must be, and hereby is, dismissed.

[12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[13] Commissioner Humphrey dissents.