{"id":"alj-H010885-2023-08-31","awcc_number":"H010885","decision_date":"2023-08-31","opinion_type":"alj","claimant_name":"Connie Guild","employer_name":"Walmart Inc","title":"GUILD VS. WALMART INC. AWCC# H010885AUGUST 31, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["back","hip","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GUILD_CONNIE_H010885_20230831.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUILD_CONNIE_H010885_20230831.pdf","text_length":9115,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H010885 \n \n \nCONNIE GUILD, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nWALMART INC.,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nWALMART CLAIMS SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED AUGUST 31, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, did not attend the hearing.  \n \nRespondents  represented  by  the  Honorable  R.  Scott  Zuerker,  Attorney  at  Law,  Fort  Smith, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on August 30, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination of whether \nthe above-referenced case should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann.  §11-9-702  (Repl.  2012)  and Arkansas Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the August 30, 2023, hearing and the documents \nheld therein.  Additionally, the entire Commission’s file has been made a part of the record.  It is \nhereby incorporated into the hearing transcript by reference.    \n\nGuild – H010885 \n \n2 \n \nProcedural History \n On January 12, 2022, the Claimant’s then attorney filed with the Commission a claim for \nArkansas workers’ compensation benefits  by  way  of  a  Form  AR-C.    Counsel  alleged  that  the \nClaimant sustained compensable injuries on February 1, 2020, while performing her employment \nduties  for  the  respondent-employer.  Counsel  asked  for  both  initial  and  additional workers’ \ncompensation benefits on behalf of the Claimant.  In fact, her attorney checked all the boxes for \nevery  benefit  allowed  under  the  law  in  connection  with  this  claim.    Per  the  Form AR-C,  the \nClaimant’s accidental injury occurred as follows: “Fell back off a ladder and landed on a cart, and \nthen fell on the floor while getting something off the top shelf in the freezer.  She sustained injuries \nto the back, hip, and other whole body.”  \n The  claims  adjuster  filed  a  Form  AR-2  with  the  Commission  on  December  28,  2020, \naccepting  this  as  a  compensable  claim  for  an injury to the Claimant’s left  hip  in  the  form  of  a \nclosed fracture.  \n On November 14, 2022, the Claimant’s attorney filed a motion to withdraw as her counsel.  \nThe  Full  Commission  entered  an  Order  on  November  29,  2022,  granting  the  motion  for  the \nClaimant’s attorney to withdraw from representing her in this claim.  \n   Subsequently, there was no action taken by the Claimant to resolve her claim, and nor did \nshe request a hearing.   \nTherefore, the Respondents filed a Motion to Dismiss with the Commission on  May 22, \n2023.  The Respondents’ pleading included a certificate of service to the Claimant affirming that \nthey sent a copy of the above motion to the Claimant via certified mail through the United States \nPostal Service.  \n\nGuild – H010885 \n \n3 \n \nThe Commission sent a letter-notice on May 24, 2023, to the Claimant by mailing it to her \nlast  known  address  via  first-class  and  certified  mail.  Per  this  correspondence,  the  Commission \ngave  the  Claimant  a  deadline  of  twenty  days,  for  filing  a  written  response to the Respondents’ \nmotion. \nOn  May  25,  2023,  the  Claimant  sent  an  email  to  the  Commission  objecting  to  the \nRespondents’ motion.  Specifically, the Claimant said that she was is in the process of retaining \nlegal counsel.  She also said that her medical doctor could send records showing that her injury is \npermanent and will continue to worsen and eventually cause her to be disabled. \nAs  a  result,  the Respondents’ motion  was  held  in  abeyance  for  thirty  days  so  that  the \nClaimant could retain legal counsel and start the hearing process.    \nOn  June  21,  2023,  the  Claimant  wrote  to  the  Commission  saying  she  had  retained an \nattorney and was waiting for her paperwork from her previous attorney’s law firm.  However, to \ndate,  the  attorney  named  in  this  correspondence  has  not  entered  an  appearance  with  the \nCommission on behalf of the Claimant in this claim.     \nTherefore, pursuant to a Hearing Notice dated July 18, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto a lack of prosecution of it by the Claimant.  The notice was mailed to the Claimant via first-\nclass and certified mail.  Said hearing was scheduled for August 30, 2023, at the Commission in \nLittle Rock, Arkansas.  \nThe  notice  that  the  Commission  sent  to  the  Claimant  via  first-class  mail  has  not  been \nreturned  to  the  Commission.    Although  the  postal  service  notified  the  Commission,  they  were \nunable to locate any delivery information in their records regarding the above item, a notation in \nthe Commission’s file was authored by the manager of our Legal Advisors Division, which shows \n\nGuild – H010885 \n \n4 \n \nthat on July 18, the Claimant contacted his office about the dismissal hearing.   At that time, the \nClaimant indicated among other things, that she would be attend the hearing.       \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled. Yet, the Claimant did not attend the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel noted that it has been more than six months since the filing of the claim, and a \nhearing  has  not  been  requested  by  the  Claimant.    He  also  noted  that  the  Claimant  has  had \nreasonable time to move forward with this claim but has failed to do so.  Therefore, counsel moved \nthat   this   claim   be   dismissed   under   Ark.   Code   Ann.   §11-9-702   and Arkansas  Workers’ \nCompensation Commission Rule 099.13, without prejudice due to a lack of prosecution of the case \nby the Claimant. \n        Discussion \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  The Claimant has not requested a hearing since the filing of \nthe Form AR-C in January 2022.  More importantly, the Claimant did not appear at the hearing to \nobject to her claim being dismissed.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant  has  failed  to  prosecute  her  claim for workers’ compensation benefits in  the  proper \nmanner set forth under the law.  Hence, the evidence proves that the Claimant has failed to make \na sincere effort to pursue her claim.  \nTherefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find that \nthis claim should be and is hereby respectfully dismissed, without prejudice to the refiling of it \nwithin the limitation period specified by law.   \n\nGuild – H010885 \n \n5 \n \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 for dismissal of this \nclaim due to a lack of prosecution by the Claimant, for which a hearing was \nheld. \n \n3. The Claimant has not requested a hearing since the filing of her Form AR-\nC,  which  was  done  in  January  2022.  Hence,  the  evidence  preponderates \nthat   the   Claimant   has failed  to  prosecute  her  claim  for  workers’ \ncompensation benefits.      \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 this claim for a lack of prosecution is \nhereby granted, without prejudice, per Arkansas Code Ann. §11-9-702 and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \ndismissed per Arkansas Code Ann. 11-9-702 and Arkansas Workers’ Compensation Commission \nRule 099.13, without prejudice, to the refiling of it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H010885 CONNIE GUILD, EMPLOYEE CLAIMANT WALMART INC., EMPLOYER RESPONDENT WALMART CLAIMS SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 31, 2023 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulas...","fetched_at":"2026-05-19T23:04:47.508Z","links":{"html":"/opinions/alj-H010885-2023-08-31","pdf":"https://labor.arkansas.gov/wp-content/uploads/GUILD_CONNIE_H010885_20230831.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}