{"id":"alj-H102269-2023-04-03","awcc_number":"H102269","decision_date":"2023-04-03","opinion_type":"alj","claimant_name":"Diane Lybarger","employer_name":"Re-Engineered Business Solutions, Inc./ Rbs, Inc","title":"LYBARGER VS. RE-ENGINEERED BUSINESS SOLUTIONS, INC./ RBS, INC. AWCC# H102269 APRIL 3, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:2"],"injury_keywords":["neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//LYBARGER_DIANE_H202913_20230403.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LYBARGER_DIANE_H202913_20230403.pdf","text_length":7665,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC NO.: H202913 \n \nDIANE LYBARGER,  \nEMPLOYEE                                                                                                              CLAIMANT                                   \n \nRE-ENGINEERED BUSINESS SOLUTIONS, INC./, \nRBS, INC., EMPLOYER                                                                                     RESPONDENT           \n \nNATIONAL UNION FIRE INSURANCE COMPANY, \nINSURANCE COMPANY                                                                                  RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC.,               \nTHIRD PARTY ADMINSTRATOR (TPA)                                                      RESPONDENT                           \n                                               \n \nOPINION FILED APRIL 3, 2023   \n \nHearing before Administrative Law Judge Chandra L. Black, on March 31, 2023, in Hot Springs, \nGarland County, Arkansas. \n  \nClaimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas.  Ms. York \nwaived her appearance at the hearing.      \n \nRespondents represented by Mr. Rick Behring, Jr., 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 \nMarch 31, 2023, in the above-styled claim pursuant to Dillard v. Benton County Sheriff’s Office, \n87 Ark. App. 379, 192 S.W. 3d 287 (2004).   More specifically, the sole issue for determination is \nwhether this claim should be dismissed due to the Claimant’s failure to timely prosecute it under \nthe provisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation \nCommission Rule 099.13.  \nThe record consists of the March 31, 2023 hearing transcript and Respondents’ Exhibit 1, \nwhich consists of thirteen (13) numbered pages.  Also, the entire Commission’s file was made a \npart of the record.  It is hereby incorporated herein by reference. \n\nLybarger – H 202913 \n \n2 \n \nReasonable  notice  of  the  dismissal  hearing  was  served  on  all  the  parties  in  the  manner \nestablished by law.   \n No testimony was taken during the hearing. \n          BACKGROUND \nThe Claimant was involved in a work-related motor vehicle accident on April 8, 2022.  On \nor about April 19, 2022 the respondent-insurance carrier filed a Form AR-2 with the Commission \naccepting  this  as  a  compensable  claim.  Per  documents  filed  with  the  Commission  by  the \nRespondents’ attorney, the Claimant was declared to be at maximum medical improvement and \nreleased  with  no  work  restrictions  or  impairment  on  October  25,  2022.  As  a  result,  the \nRespondents have taken  the position that  they have authorized and paid all appropriate medical \nbenefits on this claim.         \nConversely, the Claimant’s attorney filed a Form AR-C with the Commission on July 6,  \n2022 in this matter.  Per this document, the Claimant asserted her entitlement to both initial and \nadditional workers’ compensation benefits for “injuries to her sternum, ribs, pelvis, jaw, face, neck, \nback, and other whole body.”       \nSince  the  filing  of  the  Form  AR-C,  the  Claimant  has  not  requested  a  hearing  before  the \nCommission on the merits of her claim.                  \nTherefore,  on  March  6,  2023,  the  Respondents  filed  with  the  Commission  a  Motion  to \nDismiss and Incorporated Brief in Support, along with a Certificate of Service to the Claimant’s \nattorney.   \nOn  March  13,  2023,  the  Commission  sent  a  notice  to  the Claimant’s  attorney  and  the \nClaimant notifying them of the Respondents’ motion with a deadline of twenty (20) days for filing \na written objection.  \n\nLybarger – H 202913 \n \n3 \n \nThat  same  day, the  Claimant’s  attorney wrote  to  the  Commission,  communicating  her \nposition  regarding  the  motion.    Specifically,  she  stated: “No  objection  to  a  motion  to  dismiss \nwithout prejudice.” \nOn March 15, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow that a hearing was scheduled for March 31, 2023 on the Respondents’ motion.  \n             DISCUSSION \n Subsequently,  a  hearing  was  conducted  before  the  Commission, on  the  Respondents’ \nmotion to dismiss as scheduled.   During the hearing, counsel for the Respondents moved that the \nwithin claim be dismissed without prejudice due to a lack of prosecution.  Specifically, counsel \nnoted that the Claimant has not requested a hearing or had any activity on the claim since the filing \nof the Form AR-C.  He also noted that all appropriate benefits have been paid to and on behalf of \nthe Claimant.   \nMy review of the entire record establishes that more than six (6) months have passed after \nthe filing of the Form AR-C for a claim of workers’ compensation benefits.  However, since this \ntime, the Claimant has failed to make with the Commission a bona fide request for a hearing with \nrespect to her claim.  Moreover, the Claimant does not object to her claim being dismissed without \nprejudice.  Under these  circumstances,  I am persuaded that  the Claimant has had ample time to \npursue  her  claim for  workers’  compensation benefits,  but  she  has  failed  to  do  so.  Thus,  the \nClaimant has failed to timely prosecute her claim.   \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore this Commission, I find that the Respondents’ motion to dismiss this claim should be and \nis hereby granted under Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13. \n\nLybarger – H 202913 \n \n4 \n \nAccordingly, this  claim  for  workers’  compensation  benefits is  respectfully  dismissed  without \nprejudice to the refiling within the specified limitation period. \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 Claimant filed a Form AR-C with the Commission on or about July 6, \n2022. \n \n3. More  than  six  (6)  months  have  passed  since  the  Claimant  filed  the  Form \nAR-C for a claim of workers’ compensation benefits.  However, since the  \nfiling  of  said  claim,  the  Claimant  has  not  requested  a  hearing  or  had  any \nactivity on the claim.  \n \n4. The  Respondents  filed  a  Motion to  Dismiss  and  Incorporated  Brief  in \nSupport with the Commission on March 6, 2023.        \n   \n5. The  Claimant  does  not  object  to  her  claim  being  dismissed  without \nprejudice.  \n \n6. That  the  evidence  preponderates  that  the  dismissal  of  this  claim  without \nprejudice is warranted. \n \n7. That the Respondents’ motion to dismiss is hereby granted pursuant to Ark. \nCode Ann.§11-9-702 (Repl. 2012), and Commission Rule 099.13, without \nprejudice to the refiling of the claim within the applicable limitation period.  \n   \nORDER \nBased upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This claim is dismissed under the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13, without  \n \n \n\nLybarger – H 202913 \n \n5 \n \nprejudice to the refiling of this claim within the specified limitation period. \nIT IS SO ORDERED. \n  \n                          \n \n  _______________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO.: H202913 DIANE LYBARGER, EMPLOYEE CLAIMANT RE-ENGINEERED BUSINESS SOLUTIONS, INC./, RBS, INC., EMPLOYER RESPONDENT NATIONAL UNION FIRE INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT...","fetched_at":"2026-05-19T23:08:10.138Z","links":{"html":"/opinions/alj-H102269-2023-04-03","pdf":"https://labor.arkansas.gov/wp-content/uploads//LYBARGER_DIANE_H202913_20230403.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}