{"id":"alj-H008680-2023-01-10","awcc_number":"H008680","decision_date":"2023-01-10","opinion_type":"alj","claimant_name":"Yvonne Reed","employer_name":"Central Arkansas Development Council","title":"REED VS. CENTRAL ARKANSAS DEVELOPMENT COUNCIL AWCC# H008680 JANUARY 10, 2023","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:3"],"injury_keywords":["shoulder","cervical"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/REED_YVONNE_H008680_20230110.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REED_YVONNE_H008680_20230110.pdf","text_length":13535,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                          CLAIM NO.: H008680 \n \nYVONNE REED,  \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nCENTRAL ARKANSAS DEVELOPMENT COUNCIL, \nEMPLOYER                                                                                                            RESPONDENT  \n \nATA WC TRUST/RISK MANAGEMENT RESOURCES,                \nCARRIER/THIRD PARTY ADMINISTRATOR                                                  RESPONDENT    \n                                                                                                                                                                                \n                                               \n  OPINION FILED JANUARY 10, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  CHANDRA  L.  BLACK,  in  Little  Rock, \nPulaski County, Arkansas. \n  \nClaimant  represented  by  Gregory  R.  Giles,  Attorney  at  Law,  Texarkana,  Arkansas.  Mr.  Giles \nwaived his appearance at the hearing.       \n \nRespondents represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  on the Respondents’ motion to dismiss for want of prosecution, on \nJanuary 4, 2023, in this claim for workers’ compensation benefits pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Specifically, the sole issue \nfor  determination  was  whether  this  claim  should  be  dismissed due to the Claimant’s failure  to \npromptly prosecute it pursuant to the provisions of Ark. Code Ann. §11-9-702  (Repl. 2012) and/or \nArkansas Workers’ Compensation Commission Rule 099.13.  \n Reasonable notice of the dismissal hearing was had on all parties in the manner prescribed \nby law.   \n     The record consists of the hearing transcript from January 4, 2023.  Without any objection, \nthe entire Commission’s file has been made a part of the record.  It is hereby incorporated herein \n\nReed – H008680 \n \n2 \n \nby reference.  Similarly, the Respondents introduced into evidence a Respondents’ Hearing Exhibit \nIndex consisting of nineteen (19) numbered pages, which was marked Respondents’ Exhibit 1.    \n No testimony was taken at the hearing. \nBackground \n The following procedural history applies to this claim: \nThe Claimant wrote a letter to the Commission in the above-styled claim on January 31, \n2022 to request a  hearing on her claim.  My review of the documentary evidence demonstrates \nthat  the  Claimant  was  involved  in  a  minor  motor  vehicle  accident  on  October  24,  2020  while \nworking for the respondent-employer.    \nOn or about November 9, 2020  the Respondents (the carrier) filed a Form AR-2 with the \nCommission.  At that time, the Respondents accepted the claim as compensable for the Claimant’s  \nOctober 24, 2020 accidental injury.  The carrier accepted this claim for an injury to the Claimant’s \nleft arm.  Then, on January 25, 2022  the Respondents  denied the claim on the grounds that there \nwere no objective findings of an injury to the Claimant’s left shoulder or cervical spine.    \nPursuant to the Claimant’s January 2022 request for a hearing on the merits, this claim was \nscheduled for a Prehearing Telephone Conference on March 29, 2022.   However, at the time of \nthe prehearing conference, the Claimant stated that she wanted to seek legal representation in her \nworkers’ compensation claim.   Therefore,  following  the  telephone  conference  the  claim  was \nreturned to the Commission’s general files.  \nConsequently, there was no action taken on the part of the Claimant to prosecute, resolve, \nor pursue her claim. \nThe  Claimant  retained  an  attorney  on  May  3,  2022.   Her  attorney  filed  a  letter  of \nrepresentation and a Form AR-C with the Commission on that same date.  Per this document, the \n\nReed – H008680 \n \n3 \n \nClaimant’s alleged injury was due to the October 24, 2020 motor vehicle accident.   On the Form \nAR-C,  the Claimant’s attorney checked  all  of  the  boxes  for  both  initial  and  additional  benefits \nworkers’ compensation benefits.  However, a request for a hearing was not made at that time.  \nTherefore, on November 4, 2022 the Respondents filed with the Commission a Motion to \nDismiss for Failure to Prosecute.  The Respondents served a copy of the foregoing pleading on the \nClaimant’s attorney via electronic mail. \nOn November 7, 2022, the Claimant and her attorney were given a deadline of November \n28,  2022,  to  file a written  objection  to  the  motion.    The  Claimant  received  a  copy  of  this  letter  \nfrom  the  United  States  Postal  Service  by  picking  it  up  at  the  local  post  office,  in  El  Dorado, \nArkansas.     \nThe Claimant’s attorney wrote the following letter to the Commission on November 15, \n2022: \nDear Judge Black: \nThank you for your letter of November 7, 2022.  Ms. Reed respectfully requests that the \nMotion  to  Dismiss  be  denied.    Given  the  circumstances,  Ms.  Reed  respectfully  requests \nthat a hearing be scheduled concerning the issue of compensability.      \n \nAs a result, the prehearing process was resumed.  However, on December 7, 2022 the  \nClaimant’s attorney wrote another letter to the Commission.  It reads: \n Dear Judge Black: \nI  am  writing  you  on  behalf  of  the  Claimant,  Ms.  Yvonne  Reed  to  withdraw  our  hearing \nrequest  and  withdraw  our  objection  to  voluntary  dismissal.  Ms.  Reed  continues  to  be \nemployed by Central Arkansas Development Council, and she no longer wishes to pursue \nthis claim. At the time of this alleged work related accident that occurred on October 24, \n2020 which was the  result of a motor vehicle  accident, Ms. Reed was already under the \ncare of a chiropractor as a result of a work related accident that had occurred on October \n\nReed – H008680 \n \n4 \n \n4,\n1\n  2020.  Based  upon  the  review  of  the  prior  medical  records  and  records  of  treatment \nfollowing her October 24\nth\n event, it appears at best she had a temporary aggravation of a \npre-existing  condition.  A  brief  period  of  TTD  benefits  which  was  initially  accepted  and \npaid  and  she  was  able  to  subsequently  return  to  work.  She  continues  to  successfully \nmaintain her job at Central Arkansas Development Council and no longer wishes to pursue \nthis claim. Thank you for your consideration. \n \nSubsequently, on December 9, 2022, the Commission issued a Notice of Hearing, which \nwas  sent  via  certified  mail  to  all parties letting them know that a hearing on the Respondents’ \nmotion for dismissal was scheduled for January 4, 2023.  Based on information received from the \nPostal Service, the Notice of Hearing was delivered to the Claimant when she picked it up from \nthe local Post Office, in  El Dorado,  Arkansas on  December 17, 2022.  The Claimant’s attorney \nalso received  a copy of the Hearing Notice.    \nOn  December  20,  2022, the  Claimant’s  attorney  filed  with  the  Commission  a  formal \nrequest to  withdraw from representing the Claimant in this workers’ compensation claim.    The \nClaimant notified the Commission via email that she does not object to her attorney withdrawing \nfrom her claim.  The Respondents do not object to the Claimant’s attorney withdrawing from the \nclaim.  \nSince this time, the Claimant has objected to her claim being dismissed. \nThus far, there has been no bona fide undertaking of any kind on the part of the Claimant \nto resolve or otherwise pursue her claim.  \nNevertheless, said hearing was in fact conducted on the Respondents’ motion to dismiss as \nscheduled.    The  Claimant  did  not  appear  at  the  hearing  to  object  to  her workers’ compensation \nclaim  being  dismissed.  Her  attorney  waived  his  appearance  at  the  hearing.  However,  the \n \n1\n The Claimant’s attorney sent an email to the Commission on December 8, 2022 stating \n“My letter incorrectly states the 10/4/20 MVA was work-related.  It should have stated another \nMVA. That accident was not work-related.”      \n\nReed – H008680 \n \n5 \n \nRespondents’ attorney appeared for the hearing.  During the hearing, the Respondents’ attorney \nmoved that this claim be dismissed without prejudice due to the Claimant’s failure to prosecute it.  \nCounsel  specifically  asked  that  the  dismissal  be  made  under  Ark.  Code  Ann.  §11-9-702  and \nCommission Rule 099.13.   The applicable law and Commission Rule are set forth below.  \n                          Discussion \nIn that regard, Ark. Code Ann. §11-9-702(a)(4) (Repl. 2012) reads:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n  \nArk. Code Ann. §11-9-702 (d) (Repl. 2012) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed  \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. (Effective March 1, 1982) \n \nMy review of the record shows that more than six (6) months have elapsed since the filing \nof the Form AR-C in this claim for workers’ compensation benefits.  However, since this time, the \n\nReed – H008680 \n \n6 \n \nClaimant has failed to make a bona fide request for a hearing with respect to this claim. Thus, this \nis an appropriate basis for dismissal.   \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is  called  for \npursuant to Commission Rule 099.13.  Consequently, this claim is respectfully dismissed without \nprejudice, to the refiling of it within the limitation period specified by law.  Moreover, considering \nthat this claim has now been dismissed pursuant to Rule 099.13, the issue of it being dismissed \nunder the provisions of Ark. Code Ann. §11-9-702 has been rendered moot not discussed herein \nthis Opinion.  Of note, I realize that the Claimant has now objected to her claim being dismissed.  \nYet,  she has failed to identify any justiciable issues and she has not requested a hearing on the  \nmerits.   \nAdditionally,   my  review  of  the  Claimant’s  attorney’s  motion  to  withdraw  from \nrepresenting her complies with AWCC Advisory 2003-2.  Therefore, the motion to withdraw is \nhereby granted.   \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. Reasonable notice of the dismissal hearing was provided to all the parties \nin the manner prescribed by law.   \n \n3. The Claimant has failed to prosecute her claim for workers’ compensation \nbenefits.  \n \n4. The  evidence  preponderates  that the Respondents’ Motion  to  Dismiss  for \nFailure to Prosecute is warranted. \n \n\nReed – H008680 \n \n7 \n \n5. That  the  Respondents’ motion  to  dismiss  is  hereby  granted  pursuant  to \nCommission  Rule  099.13,  without  prejudice,  to  the  refiling  of  the  claim \nwithin  the  specified  limitation  period.  Therefore,  an  adjudication  of  the \nclaim being dismissed under the provisions of Ark. Code  Ann. §11-9-702 \nhas been rendered moot and not discussed herein this Opinion. \n \n6. The Claimant’s attorney is hereby relieved  as  counsel  of  record  in  this \nmatter. \n \nORDER \nBased on the foregoing findings of fact and conclusions of law, this claim is respectfully \ndismissed without prejudice under Rule 099.13, to the refiling of it within the limitation period  \nspecified  by  law.   The Claimant’s attorney’s motion to withdraw from representing her in this \nmatter is hereby granted.     \nIT IS SO ORDERED. \n \n                                                                        ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H008680 YVONNE REED, EMPLOYEE CLAIMANT CENTRAL ARKANSAS DEVELOPMENT COUNCIL, EMPLOYER RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 10, 2023 Hearing before ADMINISTRATIVE LAW JUDGE CHA...","fetched_at":"2026-05-19T23:11:10.908Z","links":{"html":"/opinions/alj-H008680-2023-01-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/REED_YVONNE_H008680_20230110.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}