{"id":"alj-H006088-2023-08-08","awcc_number":"H006088","decision_date":"2023-08-08","opinion_type":"alj","claimant_name":"Marcos Sandaval","employer_name":"Avila Construction","title":"SANDAVAL VS. AVILA CONSTRUCTION AWCC# H006088 AUGUST 8, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SANDAVAL_MARCOS_H006088_20230808.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDAVAL_MARCOS_H006088_20230808.pdf","text_length":7887,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H006088 \n \n \nMARCOS SANDAVAL, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nAVILA CONSTRUCTION,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nFIRSTCOMP INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nMARKEL SERVICE, INCORPORATED                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED AUGUST 8, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Daniel Wren, Attorney at Law, Little Rock, Arkansas.  Mr. \nWren waived his participation in the hearing. \n     \nRespondents  represented  by  the  Honorable  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 19, 2023 in the present matter for a determination of whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission \nRule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  19,  2023,  hearing  and  the  documents \ncontained therein.  The Respondents’ Hearing Exhibit Index consisting of eleven numbered pages \n\nSandaval – H006088 \n \n2 \n \nand a cover sheet was marked as Respondents’ Exhibit 1.  The Respondents’ Exhibit 2 included a \ncopy of the Claimant’s attorney Response to the Motion to Dissmiss, which consisted of two pages. \nAs well, the entire Commission’s file has been made a part of the record.  It is hereby incorporated \nherein by reference.    \n                                                           Procedural History \n On  August  19,  2022,  the Claimant’s  attorney  filed  with  the  Commission  a  claim  for \nworkers’ compensation benefits by way of a Form AR-C.  Specifically, this document specified \nthat the Claimant sustained an injury to his right eye on August 18, 2020.  Per this document, the \nClaimant was nailing wood, and someone left a piece of metal on the floor, and he stepped on it, \nand it went straight into his eye.  The Claimant’s attorney asked for all available benefits under the \nArkansas Workers’ Compensation Act.  \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on September \n1, 2020, accepting this as a compensable right eye injury.  The carrier has paid both indemnity and \nmedical benefits to and on behalf of the Claimant. \n  Since the filing of the Form AR-C, there has been no appreciable action on the part of the \nClaimant to prosecute his claim for workers’ compensation benefits, or otherwise pursue or bring \nhis claim to a resolution.  \nOn May  9,  2023,  the  Respondents  filed  with  the  Commission  a  Motion  to  Dismiss  for \nFailure to Prosecute, along with a Certificate of Service to the Claimant’s attorney.  \nThe  Commission  sent  a  letter-notice  to  the  Claimant  and  his  attorney  on May  11,  2023.  \nPer  this  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to the Respondents’ motion.    The  aforementioned  notice  was  sent  to  the  Claimant  via \nfirst-class and certified mail.     \n\nSandaval – H006088 \n \n3 \n \nPursuant to a Hearing Notice as of June 13, 2023, the Commission notified the parties that \na hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a lack of \nprosecution.    Said  hearing  was  scheduled  for  July  19,  2023, at  12:30  p.m.,  at  the  Arkansas \nWorkers’ Compensation Commission, in Little Rock, Arkansas.   \nOn July 7, 2023, the Claimant’s attorney filed a Response to Motion to Dismiss with the \nCommission.    The Claimant’s  attorney  also  wrote  a  letter  to  the  Commission  that  same  day.  \nSpecifically,  counsel  for  the  Claimant  stated: “The  Claimant,  Marco  Sandaval,  has  filed  his \nResponse to the Respondents’ Motion to Dismiss.”  Pursuant to Ark. Code Ann.  §11-9-702 the \nClaimant  does  not  object  to  the  AR-C  being  dismissed,  without  prejudice,  as  the  statute  of \nlimitations on this claim has not run.”       \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant’s attorney waived his appearance at the hearing.  The Respondents \nappeared through their attorney.   \nCounsel  noted  the  Claimant  has  not  requested  a  hearing  on  his claim  for  workers’ \ncompensation  benefits  since  the  Form  AR-C  was  filed.    Counsel  specifically  noted  that  the \nClaimant’s attorney does not object to the claim being dismissed without prejudice.  Therefore, \ncounsel  essentially  moved  that  this  claim  be  dismissed  under  the  provisions  of  Ark.  Code  Ann. \n§11-9-702 and Arkansas Workers’ Compensation Commission Rule 099.13. \nThe record before me proves that the Claimant has not requested a hearing since the filing \nof  his claim  for  workers’  compensation  benefits.    Hence,  there  are  no  identifiable  issues  to  be \nadjudicated  at  this  time.   The Claimant’s attorney  does  not  object  to  the  claim  being  dismissed \nwithout prejudice.  Accordingly, after having taken into full consideration the entire record before \nme, I find that this claim should be and is hereby dismissed, without prejudice to the refiling of it \n\nSandaval – H006088 \n \n4 \n \nwith the limitation period specified by law.  This dismissal is hereby made under the provisions of \nArk. Code Ann. §11-9-702 and Rule 099.13 of this Commission. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion to dismiss this claim \nfor a lack of prosecution, for which a hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute his \nclaim   for   workers’   compensation   benefits.   Most   significantly,   the \nClaimant’s attorney does not object to this claim being dismissed without \nprejudice.    \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant to Ark. Code Ann. §11-9-702 and Commission Rule 099.13, to the \nrefiling of it within the limitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702 and Arkansas Workers’ Compensation \nCommission Rule 099.13, without prejudice to the refiling of it, within the limitation period  \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge \n\nSandaval – H006088 \n \n5","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H006088 MARCOS SANDAVAL, EMPLOYEE CLAIMANT AVILA CONSTRUCTION, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INCORPORATED THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 8, 2023 Hearing held before ...","fetched_at":"2026-05-19T23:03:40.266Z","links":{"html":"/opinions/alj-H006088-2023-08-08","pdf":"https://labor.arkansas.gov/wp-content/uploads/SANDAVAL_MARCOS_H006088_20230808.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}