Opinion
CLAIM NO. E600073
OPINION FILED AUGUST 7, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by LANA PARKS DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Claimant appeals an Administrative Law Judge's order dismissing his claim with prejudice.
After claimant and his attorney failed to appear for the scheduled hearing, the Administrative Law Judge granted respondent's motion for dismissal with prejudice and for the imposition of costs. Claimant contends on appeal that the dismissal with prejudice was too harsh and that the imposition of costs is sufficient sanction. Since claimant does not appeal the imposition of costs, we affirm that portion of the Administrative Law Judge's order. However, we find that the dismissal should be without prejudice to the refiling of the claim.
The Commission and the Arkansas Supreme Court have expressed a preference for dismissals without prejudice, although the Commission has inherent authority to dismiss appropriate cases with prejudice. Laura Hutchinson v. North Arkansas Foundry, Full Commission opinion filed October 23, 1991 ( D902143);Professional Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982).
While claimant's attorney apparently did not exercise diligence in obtaining documentary evidence to introduce at the hearing and clearly failed to follow proper procedures in requesting a continuance of the hearing, we find that the particular facts of this case do not support a finding that the dismissal should be with prejudice.
Accordingly, we modify the Administrative Law Judge's order of dismissal to one without prejudice. Additionally, we affirm the Administrative Law Judge's imposition of costs against claimant and his attorney.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I respectfully dissent from the majority's opinion dismissing the claimant's claim without prejudice. I would affirm the Administrative Law Judge's opinion dismissing this claim with prejudice. However, I concur in the majority's assessment of costs against the claimant and his attorney.
The claimant sustained an allegedly compensable hernia on January 17, 1995. He did not report an injury to the respondent at the time or within forty-eight (48) hours after the occurrence as required by Ark. Code Ann. § 11-9-523(a)(4) (Repl. 1996). It was not until January 4, 1996 that the claimant filed a Form AR-C with the Commission. By a letter dated June 3, 1996, the claimant's attorney Philip Wilson requested a hearing on the compensability of the claim. The claimant filed a prehearing information sheet on July 1, 1996, which stated that a complete medical packet was enclosed. However, no packet was attached. On July 15, 1996, a telephone prehearing conference was conducted. During this conference, Lana Davis indicated that Philip Wilson had "punted" the case to her. She admitted that she had never met the claimant, reviewed the file or seen any medical records. She indicated that she still needed to obtain the claimant's medical records. At the prehearing conference, a hearing was scheduled for October 3, 1996, at 10:30 a.m.
On July 15, 1996, the Administrative Law Judge issued a Prehearing Order. This order set forth the contentions and stipulations of the parties and the issues to be litigated. This prehearing order also sets a hearing for Thursday, October 3, 1996, at 10:30 a.m. More importantly, on pages 2 and 3 of that order, it states as follows:
Pursuant to Rule 13 of the Workers' Compensation Commission, this hearing will not be postponed except by approval of the Administrative Law Judge. A party seeking to cancel or reschedule a hearing must first contact opposing counsel and then the Administrative Law Judge. Since the parties agreed to the hearing date during the prehearing conference, no changes will be made without showing good cause. Docket changes made five days or less before the scheduled hearing may result in the assessment of hearing costs, court reporter expenses, witness fees, attorney fees, or other costs resulting from the change.
In addition, the prehearing order declares that:
No witness will be allowed to testify unless the name of the witness is furnished to the opposing party or parties at least seven (7) days prior to the scheduled hearing, except with leave of the Commission and upon a showing of good cause. No documents will be allowed into evidence unless exchanged by the parties at least seven (7) days prior to the scheduled hearing, except with leave of the Commission and upon a showing of good cause. Any evidence, whether documentary evidence or testimonial evidence, which is not disclosed through the prehearing process or which fails to comply with the provisions of this Order shall not be recorded as evidence at the hearing unless permission of the Commission is obtained upon a showing of good cause.
A copy of the prehearing order was mailed to Ms. Davis' office certified mail return receipt requested. It was signed by Ms. Davis' office on July 17, 1996.
On the afternoon of the hearing, Ms. Davis' office contacted the Administrative Law Judge's assistant advising her that the claimant's medical records could not be located and requesting that the Commission file be checked for the records. After determining that the Commission file did not contain any medical records, Ms. Davis' office advised the Administrative Law Judge's assistant that they would try to obtain the records from the claimant's physician, and that they might ask for a continuance if they could not get the records. Also, on the afternoon before the hearing, Ms. Davis' office contacted the respondent's attorney's office. The respondent's attorney was out of the office. However, Ms. Davis' office was informed that a formal objection to a request for a continuance would be made.
The next morning, the Administrative Law Judge's assistant contacted Ms. Davis' office to inquire about the status of the hearing. She was told that Ms. Davis' office was awaiting word from the doctor's office. Ms. Davis' office then called at 8:45 requesting a continuance. Ms. Davis' office was informed that a written request which stated the reasons for the request should be sent by facsimile to the Administrative Law Judge for a decision on whether or not the request would be granted.
At the time of the 10:30 a.m. hearing, no written request for a continuance had been received by the Administrative Law Judge. The respondent's attorney, three witnesses for respondent, the court reporter and the Administrative Law Judge were all present for the scheduled hearing. The respondent moved for a dismissal of the claim with prejudice and for the imposition of costs. The Administrative Law Judge granted the motion from the bench. On November 26, 1996, the Administrative Law Judge issued an order granting the respondent's motion which is the subject of this appeal.
Ms. Davis argues that she failed to appear at the hearing because the Administrative Law Judge's office did not communicate to her that a continuance would not be granted. In addition, Ms. Davis contends that she "simply made a mistake in assuming that there was not a problem with the continuance." She asserts that these assumptions were made in reliance on her legal assistant and on the basis of her conversations with Sophia (the Administrative Law Judge's assistant) and Mr. Pickens' (the respondent's attorney) office the day prior to the hearing. She states that she would have been present at the hearing had she known that there was a problem with the request for continuance. Ms. Davis argues that the claimant should not be punished for the mistake of his attorney's office.
The Commission has previously adopted the rules regarding appealability adopted by Arkansas's appellate courts. In this regard, we have previously found that, to be appealable, an order "must dismiss parties from the court, discharge them from the action, or conclude their rights to the subject-matter in controversy." Donald Phylant v. R. L. Johnson Son, Inc., Full Workers' Compensation Commission, June 23, 1987 (Claim No. D505505); David Nale v. Davis Construction Co., Full Workers' Compensation Commission, June 23, 1987 (Claim No. D513236) citingPiercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943); H. E. McConnell v. Sadle, 248 Ark. 1183, 455 S.W.2d 880 (1970). The Commission subsequently also adopted the refinement to the rule enunciated by the Court of Appeals in Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989). See, Tommy Stafford v. Arkmo Lumber Co., Full Workers' Compensation Commission, August 10, 1989 (Claim No. D902075). In Gina Marie Farms, the Court stated that in order to be appealable, a decree must "put the court's directive into execution, ending the litigation or a separable branch of it."
It is a well-settled rule that an order which is not a final order is not appealable. Dodd v. Bonds, 220 Ark. 951, 251 S.W.2d 587 (1952). The Commission has previously held that orders of dismissal which are without prejudice are not appealable orders. Nale, supra; Phylant, supra. A dismissal with prejudice, in effect, acts as a denial of compensation and ends the litigation. Therefore, a dismissal with prejudice is reviewable by the Full Commission. However, a dismissal without prejudice does not act as a denial of compensation or end any portion of the litigation. The claimant may refile the claim and pursue litigation of the claim on its merits. Therefore, a dismissal without prejudice is not a final, appealable order.
The Commission has previously held that, with respect to dismissals under Commission Rule 13, it prefers dismissals without prejudice. See, Linwood Jenkins v. Georgia Pacific Corporation, Full Workers' Compensation Commission, May 5, 1992 (Claim No. D806269), Laura Hutcheson v. North Arkansas Poultry, Full Workers' Compensation Commission, October 23, 1991 (Claim No. D902143) andJames Woods v. Arkansas Waste Disposal, Full Workers' Compensation Commission, May 2, 1990 (Claim No. D015483). 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 Co., 286 Ark. 20, 688 S.W.2d 934 (1985). However, 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 stated inLaura Hutcheson, supra:
Consequently, we find that the Commission has the same inherent power to dismiss appropriate cases with prejudice. Therefore, the Commission may enter an order of dismissal with prejudice; however, the Commission must review each application for dismissal on its merits and dismiss claims with prejudice only when necessary to prevent abuse of the Arkansas Workers Compensation law.
It is also well settled that the Administrative Law Judge has the authority to dismiss a claim. The Arkansas Court of Appeals stated in Harrington Constr. Co. that:
Pursuant to Ark. Code Ann. § 11-9-205(a)(a)(A) (1987), the Workers' Compensation Commission is specifically authorized to make such rules and regulations as may be found necessary to carry out its duties. Subsection (c) of that statute charges the referee (Administrative Law Judge in the 1996 Repl. volume) with the duty of conducting hearings, investigations, and making such orders as are required by any of the Commission Rules.
55 Ark. App. at 129.
Under the authority of Ark. Code Ann. § 11-9-205(a)(1)(A) (Repl. 1996) the Commission promulgated Rule 13. Rule 13 allows the Commission or the Administrative Law Judge to enter an order dismissing a claim upon reasonable notice to all parties.
The Administrative Law Judge in the case before us dismissed this claim and relied upon Commission Rule 13. The Administrative Law Judge indicated that the dismissal was with prejudice. Therefore, this is a final appealable order which is reviewable by the Commission. After a review of the evidence in this case, I find that the claim should be dismissed with prejudice and the order of the Administrative Law Judge affirmed.
Ms. Davis states in a letter dated October 7, 1996, written in response to the Administrative Law Judges letter of October 4, 1996, that she assumed that a continuance would automatically be granted because she requested one. However, the Arkansas Court of Appeals has stated recently in the case ofFlorence v. Taylor, 325 Ark. 445, ___ S.W.2d ___ (1986) that the mere request for a continuance does not continue a hearing. In addition, Rule 13 of the Rules of the Arkansas Workers' Compensation Commission provides that:
The Commission may, in its discretion, postpone or recess hearings at the instance of either party or on its own motion. No case set for hearing shall be postponed except by approval of the Commission or Administrative Law Judge.
In addition, Ms. Davis was provided a copy of the Administrative Law Judge's Prehearing Order, which she received on July 17, 1996, by certified mail, return receipt requested. The Prehearing Order specifically states that:
Pursuant to Rule 13 of the Workers' Compensation Commission, this hearing will not be postponed except by approval of the Administrative Law Judge . . .
The evidence shows that Ms. Davis was fully cognizant of the fact that a hearing would not be postponed except by the approval of the Administrative Law Judge. It is also clear that a motion for continuance was never received by the Administrative Law Judge prior to the hearing. In fact, a written request for a continuance was not sent to the Administrative Law Judge until sometime after 10:45 a.m., fifteen minutes after the time for the hearing to start. Further, Ms. Davis was informed by the respondent's attorney that he would pose a formal objection to any request for continuance. In my opinion, it is an abuse of the Workers' Compensation law and a blatant disregard for the authority of this Commission for Ms. Davis to "assume" that a continuance would be granted and not show up at the hearing.
Moreover, the claimant has clearly demonstrated a lack of diligence in pursuing his claim for his alleged hernia injury on January 17, 1995. The claimant did not file a claim for compensation until January 4, 1996, almost one year later, although Ark. Code Ann. § 11-9-523(a)(4) requires notification within forty-eight (48) hours of occurrence. There is absolutely no evidence in the record that the claimant reported his alleged injury within this statutorily required time period. The ability of the Commission and the respondent to investigate his claim is severely impeded as time passes.
Ms. Davis was apprised of the fact that she did not have the claimant's medical records at the prehearing conference in July, which is 2 and 1/2 months prior to the hearing. However, it was not until the afternoon before the hearing was scheduled did Ms. Davis have her office pursue the location of these records. The Commission rules provide that parties are to exchange evidence 7 days prior to the hearing. The rules also provide that good cause must be shown in order to waive this requirement. It is my opinion that Ms. Davis did not show good cause. It goes without saying that if Ms. Davis was having trouble obtaining the claimant's medical records, she should have notified the respondent and the Administrative Law Judge at the time of the evidence deadline, which was 7 days prior to the hearing. She should not have waited until less than 24 hours before the hearing was scheduled to begin. This shows a total lack of diligence on the part of the Ms. Davis in preparing for a hearing. I also find it appalling that Ms. Davis participated in the prehearing conference without having met the claimant, reviewing the file or reviewing any medical records.
Ms. Davis' argument that she was not given notification that dismissal with prejudice was a possible sanction for failure to appear at the hearing is without merit. The United States Supreme Court has held that failure to appear is a ground for dismissal even though notice of dismissal as a possible sanction was not given to counsel. Link v. Wabash R.R. Co., 370 U.S. 626 (1962). Therefore, Ms. Davis' failure to appear at the hearing is a ground for dismissal of the action.
Therefore, based upon my de novo review of the record, I find that the evidence supports a finding that the claim in the present case should have been dismissed with prejudice. Accordingly, I would affirm the decision of the Administrative Law Judge.
Ms. Davis also argues that it is a violation of her client's constitutional right of due process for the Administrative Law Judge to dismiss the claim with prejudice. I find this argument to be totally without merit. The Arkansas Court of Appeals has held that the Commission has the authority to dismiss a claim with prejudice when necessary to express its authority to carry out the purposes of the Arkansas Workers' Compensation Law and a dismissal with prejudice does not violate the claimant's constitutional right to due process. Loosey, supra. Consequently, the claimant's constitutional right of due process has not been violated.
Ms. Davis also argues that the claimant should not be punished for her mistake. I find this argument meritless as well. The Arkansas Supreme Court has stated that "[w]here [parties] voluntarily chose their attorney as their representative in the action, they could not avoid the consequences of the acts or omissions of this freely selected agent." Florence, supra. In addition, in the Link case, the United States Supreme Court stated:
There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.
370 U.S. at 633-634, See also Chalkley v. Henley, 178 Ark. 635, 12 S.W.2d 18 (1928).
I concur in the majority's affirmance of the assessment of the court reporter's fee of $73.10, the respondent employer's reasonable expenses of $210.00, and the respondent carrier's reasonable expenses of $187.50 on the claimant and Ms. Davis. The evidence shows that the respondent's witnesses were scheduled to be in their attorney's office at 9:30. This is forty-five minutes after Ms. Davis' office told the Administrative Law Judge's assistant that there would be a motion for continuance. It was necessary for arrangements to be made for these individuals to be available at the hearing and this involved a monetary expenditure as well as the expenditure of time. One hour and forty-five minutes is not notice well in advance of the hearing. It is also of important note that Ms. Davis was fully apprised of the fact that she may be assessed costs and expenses. The prehearing order states that docket changes made five (5) days or less before the scheduled hearing "may result in the assessment of hearing costs, court reporter expenses, witness fees, attorney fees, or other costs resulting from the change." Accordingly, I find the costs of $210.00 by the respondent employer and the costs of $187.50 by the respondent carrier to be reasonable. It is clear that the Commission has the authority to impose reasonable expenses and attorney's fees. Ark. Code Ann. § 11-9-717(b) (Repl. 1996) provides:
Appropriate sanctions, including the amount of reasonable expenses and attorney's fees, may also be imposed against a party or its attorney which, without good cause show, fails to appear for a hearing, deposition, or any other matter scheduled by the commission or administrative law judge, or frivolously joins another party.
The Commission's authority to carry out the authority was specifically confirmed by the Court of Appeals. In the case of Johnson v. Triple T Foods, 55 Ark. App. 83, ___ S.W.2d ___ (1996) affirmed a decision by the Commission imposing a sanction on the claimant's attorney. In Johnson, the Court stated:
We think it clear that the specific authority to investigate claims granted to the Commission carries also the authority to make such orders and impose such sanctions as are reasonably necessary to carry out that purpose. Harrington Constr. Co. v. Williams, 45 Ark. App. 126, 872 S.W.2d 426 (1994).
Therefore, I find that the claimant and Ms. Davis are responsible for the costs incurred by the respondent employer and respondent carrier, as well as the court reporter's fee.
Accordingly, for the reasons discussed herein, I would affirm the decision of the Administrative Law Judge dismissing the claimant's claim with prejudice and assessing costs. Therefore, I respectfully dissent in part and concur in part from the majority opinion.
MIKE WILSON, Commissioner