Opinion
CLAIM NO. E702685
OPINION FILED JULY 28, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed, as modified.
OPINION
[2] This appeal involves a pro se claimant who failed to appear for a scheduled hearing. Respondent moved for a dismissal with prejudice and the ALJ granted the motion.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 Huchinson 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);Richard Bice v. Bromley Auto Parts, Full Commission Opinion filed August 7, 1997 ( E600073). We find that claimant's failure to appear at the hearing is insufficient to warrant the harsh remedy of dismissal with prejudice. There is certainly no evidence of any pattern of misconduct by this claimant. Therefore, we modify the ALJ's order and find that the dismissal is without prejudice. If claimant wants to pursue this claim, he should refile it within the time allowed by law.
IT IS SO ORDERED.
Commissioner Wilson dissents.
CONCURRING OPINION
[7] I concur in the principal opinion's findings. I write separately to address the modification of the administrative law judge's dismissal to a dismissal without prejudice.On January 28, 1999, 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 set a hearing for Tuesday, March 30, 1999, at 9:30 a.m. in the Union County Courthouse, 101 North Washington, 3rd Floor Conference Room, El Dorado, Arkansas. On page two of that order, it states as follows:
A party wanting to cancel or reset this hearing should so advise the undersigned Judge at least five days before the hearing date set out above; otherwise, the party requesting the continuance will be responsible for the court reporter's appearance fee.
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 seven days prior to the hearing of this case on the merits, without leave of the Commission and upon a showing of good cause. No documents will be allowed into evidence unless exchanged by the parties seven days prior to the hearing of this case on the merits, without leave of the Commission and upon a showing of good cause.
A copy of the prehearing order was mailed to Mr. Paskell's home, certified mail return receipt requested.
The claimant failed to show up for the hearing before the administrative law judge that was scheduled on March 30, 1999. Therefore, the claimant had two months before the hearing of notification. The claimant stated that he did not have a ride to the hearing and that is why he did not show up. In my opinion, two months is a sufficient amount of time for the claimant to arrange a ride to the predetermined time.
At the time of the hearing, no written request for continuance had been received by the administrative law judge. The respondent's attorney, 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. The administrative law judge granted the motion from the bench. On April 1, 1999, the administrative law judge issued an order granting the respondent's motion which is the subject of this appeal. The Commission has previously adopted the rules regarding appealability adopted by Arkansas' 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, Opinion filed June 23, 1987 (Claim No. D505505); David Nale v. Davis Construction Co., Full Workers' Compensation Commission, Opinion filed June 23, 1987 (Claim No. D513236) citing Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943); H. E. McConnell v. Sadle, 248 Ark. 1182, 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, Opinion filed 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, Richard Bice v. Bromley Auto Parts, Full Workers' Compensation Commission, Opinion filed August 7, 1997 (Claim No. E600073); Terry Holman v. Form-All, Full Workers' Compensation Commission, Opinion filed April 17, 1997 (Claim No. E214277);Terri Francis v. EOA Washington County Headstart, Full Workers' Compensation Commission, Opinion filed November 18, 1996 (Claim No. E217992); Evalene Ferguson v. Baxter Healthcare, Full Workers' Compensation Commission, Opinion filed August 2, 1994 (Claim Nos. D817315 and D827798; Linwood Jenkins v. Georgia Pacific Corporation, Full Workers' Compensation Commission, Opinion filed May 5, 1992 (Claim No. D806269); Laura Hutcheson v. North Arkansas Poultry, Full Workers' Compensation Commission, Opinion filed October 23, 1991 (Claim No. D902143); and James Woods v. Arkansas Waste Disposal, Full Workers' Compensation Commission, Opinion filed 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 Company, 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).
In the present case, the pro se claimant explained in his notice of appeal and letter-brief on appeal that he has no income, and he was unable to attend the hearing because he was unable to pay for transportation. The claimant explains that he has been unable to get any help and that he received a letter in the mail dated April 29, 1999, that he did not understand.
As the principal opinion notes, there is no evidence of a pattern of conduct in this case. In my opinion, the pro se claimant's excuse for failing to attend the scheduled hearing is at least as understandable as the excuse of the claimant's attorney in Richard Bice v. Bromley Auto Parts, supra, who had likewise failed to secure a continuance prior to missing a scheduled hearing. While I obviously do not condone failure of any party to attend a scheduled hearing, I am persuaded that the dismissal in this case should be without prejudice particularly in light of the Commission's long history of preferring dismissalswithout prejudice.
Therefore, for the reasons discussed herein, I concur.
____________________________ ELDON F. COFFMAN, Chairman