Opinion
CLAIM NO. E802631.
OPINION FILED AUGUST 3, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by LAURA J. MCKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 1 represented by JAMES A. ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
OPINION AND ORDER
This case comes on for review before the Commission on claimant's appeal from the dismissal without prejudice of his claim by the Administrative Law Judge.
This claim was dismissed without prejudice by the Administrative Law Judge on November 2, 1999. The Administrative Law Judge found that claimant had failed to comply with her order that a prehearing filing be made by November 1, 1999. As we held in Guy H. Jones Jr. v. Guy Jones Jr., P.A. Full Commission Opinion filed January 24, 2000, AWCC# 206039, orders of dismissal which are without prejudice are not appealable orders.
After consideration of claimant's arguments, the respondent's briefs and all other matters properly before the Commission, we find that claimant's appeal must be denied.
Accordingly, we find that claimant's appeal should be, and hereby is, denied.
IT IS SO ORDERED.
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CONCURRING OPINION
The claimant apparently experienced some type of back problem at work on February 9, 1998. The injury was initially accepted as compensable and benefits were paid. The respondent later controverted the injury, and the claimant through her attorney, Laura McKinnon, filed a claim for additional benefits sometime in 1998. When the claimant failed to pursue the case, the administrative law judge entered an order of dismissal without prejudice for failure to prosecute pursuant to Rule 13 on September 1, 1999.
The claimant filed a new claim on September 21, 1999. The administrative law judge entered a warning order directed to the claimant's attorney on October 21, 1999, advising the claimant's attorney that she had until November 1, 1999 to comply with pre-hearing filing requirements. When the pre-hearing filing was not filed by the deadline, the administrative law judge entered a second order of dismissal without prejudice on November 2, 1999. It is this second dismissal without prejudice that is the subject of this appeal.
The respondents' attorney, James Arnold, then sent the administrative law judge a letter dated November 5, 1999, advising the administrative law judge that the respondents feel that the second dismissal operates as an adjudication on the merits pursuant to ARCP 41(b). However, this letter was clearly not a motion for reconsideration because Mr. Arnold concludes the letter:
I am advising you as well as Attorney McKinnon and Attorney Pence of our position in this regard not because I think it is necessary but because I do not want any one [sic] to think that I was "lying behind the log" if this issue is raised at a later date.
Ms. McKinnon then filed a third claim form on November 10, 1999, with a pre-hearing filing. By letter dated November 18, 1999, the administrative law judge indicated that, in addition to the claim form and pre-hearing filing, the administrative law judge must be provided a copy of the claimant's response to interrogatories previously propounded by the Second Injury Fund, and that the administrative law judge would take no action on this third claim until Ms. McKinnon had fulfilled her discovery obligations. It is not clear whether Ms. McKinnon ever fulfilled her discovery obligations.
Apparently, in response to Ms. McKinnon's third claim filing of November 10, 2000, Mr. Arnold filed a "Motion to Dismiss" with the administrative law judge on November 22, 1999, arguing that the administrative law judge's second order of dismissal (on November 2, 1999) should have been with prejudice, so that the claimant should be barred from filing the third claim on November 10, 1999.
Ms. McKinnon then filed a "Motion for Reconsideration" with the administrative law judge and a "Notice of Appeal" to the Full Commission, both on or about December 6, 1999. In her motion for reconsideration to the administrative law judge and in her brief to the Full Commission on appeal, Ms. McKinnon acknowledged that her firm's conduct was inexcusable, and requested that the administrative law judge amend her second order of dismissal to apply financial sanctions against the claimant's attorney, rather than dismissing the claimant's claim without prejudice.
I note that the claimant never raised her financial sanctions theory, and the respondents never raised their Rule 41 theory, before the administrative law judge prior to the administrative law judge entering her order of dismissal without prejudice (the order currently on appeal) on November 2, 1999. I also note that, when the claimant and the respondents each filed alternative motions with the administrative law judge after the order was filed on November 2, 1999, the administrative law judge did not respond to either motion. By her silence, of course, the administrative law judge essentially rejected both motions and refused to amend her prior November 2, 1999 order of dismissal without prejudice.
I note that the Commission and the Courts historically prefer dismissals without prejudice as the administrative law judge did here. I also note that I do not see any hint of an abuse of discretion against either party on the administrative law judge's part in how she has handled this case so far.
In summary, I note: (1) that the respondents have failed to cite any competent authority to support their theory that the administrative law judge was bound by ARCP 41 to dismiss the claimant's second claim with prejudice (2) the Full Commission is not aware of any authority indicating that the administrative law judge was bound by ARCP 41 to dismiss the claimant's second claim with prejudice and (3) in all other respects both the claimant and the respondents have failed to present sufficiently persuasive reasons why the administrative law judge, under the circumstances presented, abused her discretion in dismissing the claimant's second claim without prejudice.
For the foregoing reasons, I concur.
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DISSENTING OPINION
I respectfully dissent from the majority's opinion. In my opinion, there is substantial merit in the respondents argument that the Order of Dismissal should be an Order of Dismissal with prejudice. Rule 41B of the Arkansas Rules of Civil Procedure states:
. . .(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party no represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court's docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits. . .
Although the Commission is not required to strictly apply the Rules of Civil Procedure, there have been cases wherein the Commission has used the Rules as appropriate guidance. Specifically, in the case of Second Injury Fund v. Mid State Const. Co., 16 Ark. App. 169 698 S.W.2d 804 (1985). The Court stated although the Arkansas Rules of Civil Procedure are not binding in Workers' Compensation cases ARCP Rule 20 provides appropriate guidelines in Second Injury Fund cases. As in the case presently before us, I think that Arkansas Civil Procedure Rule 41B provides guidelines that are appropriate for the Commission to follow in cases such as we have before us.
In my opinion we should convert this order to a dismissal with prejudice. Therefore, I respectfully dissent from the majority opinion.
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