{"id":"alj-H105747-2024-08-21","awcc_number":"H105747","decision_date":"2024-08-21","opinion_type":"alj","claimant_name":"Carissa Hetzel","employer_name":"Arkansas Heart Hospital, LLC","title":"HETZEL VS. ARKANSAS HEART HOSPITAL, LLC AWCC# H105747 August 21, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:4"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Hetzel_Carissa_H105747_20240821.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hetzel_Carissa_H105747_20240821.pdf","text_length":6581,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H105747 \n \nCARISSA G. HETZEL,  \nEMPLOYEE  CLAIMANT \n \nARKANSAS HEART HOSPITAL, LLC, \nEMPLOYER                                                                                                           RESPONDENT \n \nAMERISURE INS. CO., \nCARRIER/TPA                                                                                                      RESPONDENT \n \n \n \nOPINION FILED AUGUST 21, 2024 \n \nHearing  before  Administrative  Law  Judge Steven  Porch on August 20,  2024, in Little  Rock, \nPulaski County, Arkansas. \n \nClaimant represented herself, Pro se, Little Rock, Arkansas. \n \nThe Respondents were represented  by Ms.  Karen  H.  McKinney,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non June 24, 2024. The Claimant worked as a dietary aide for Respondent/Employer. Admitted into \nevidence is  Respondents’ Exhibit  1, Motion  to  Dismiss  with  exhibits  attached,  consisting  of 7 \npages, Respondents’ Exhibit 2, June 26, 2024, notice letter for Motion to Dismiss, consisting of 1 \npage, and Respondents’ Exhibit 3, Hearing Notice, consisting of 1 page. I have also blue-backed \nFebruary 8,  2022,  hearing  request  memorandum, postal  return receipt  dated  July 11, 2024, and \nMelanie  Miller  email  dated  August  19,  2024,  involving  a  phone  call  from  the  Claimant, as \ndiscussed infra. \nThe record reflects on July 19, 2021, a Form AR-1 was filed alleging Claimant allegedly \ninjured  the  left  side  of  her  head  behind  the  ear. Claimant’s injury occurred on March  29,  2021. \n\nHETZEL AWCC No. H105747 \n \n 2 \nClaimant reported the injury to Respondent/Employer on June 29, 2021. Respondents filed a Form \nAR-2,  on July 19,  2021, controverting the  claim in  its  entirety. Claimant on  August  30,  2021, \nrequested to have a hearing because her claim was denied by Respondents. On September 9, 2021, \nfiled a Legal Advisor Claimant Questionnaire alleging her claim is more than $2,500.00, but would \nlike  to  mediate  the  claim  before  a  full  hearing. The  Respondents  in  an  email  dated  January  14, \n2022,  made  clear  that  they  will  not  change  their  position  and  accept  the  claim. A  legal  advisor \nconference was held with no resolution and the file was returned to general files since contact had \nbeen lost with Claimant to continue the hearing process.  \nThe Respondents next filed a Motion to Dismiss on June 24, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss on June 26, 2024, to her last known address of record. The certified \nnotice was not claimed by Claimant per postal receipt dated July 11, 2024. Likewise, the notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on July 19, 2024. The certified notice was not claimed by \nthe  Claimant per postal  receipt. The  regular  First-Class  hearing  notice  was  not  returned  to  the \nCommission. However, Claimant contacted my assistant, Melanie Miller, on August 19, 2024, via \ntelephone call, and stated that she does not want to pursue her  claim and does not object to the \ndismissal. She further stated that she will not be at the hearing. The hearing took place on August \n20, 2024, and the Claimant did not show up to the hearing. \n \n\nHETZEL AWCC No. H105747 \n \n 3 \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All parties received reasonable notice of the August 20, 2024, Motion to Dismiss \nhearing date. \n \n3. Respondents did prove by a preponderance of the evidence that Claimant has failed \nto prosecute her claim under AWCC R. 099.13. \n \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n5.         This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \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. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \n\nHETZEL AWCC No. H105747 \n \n 4 \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \nher claim prior to the hearing date. Moreover, she has made clear to the Commission that she does \nnot want to pursue her claim any further and does not object to a dismissal. Thus, I find that the \nRespondents have proven by the preponderance of the evidence that its’ Motion should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted and this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H105747 CARISSA G. HETZEL, EMPLOYEE CLAIMANT ARKANSAS HEART HOSPITAL, LLC, EMPLOYER RESPONDENT AMERISURE INS. CO., CARRIER/TPA RESPONDENT OPINION FILED AUGUST 21, 2024 Hearing before Administrative Law Judge Steven Porch on August 20, 2024, in Little R...","fetched_at":"2026-05-19T22:50:21.680Z","links":{"html":"/opinions/alj-H105747-2024-08-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Hetzel_Carissa_H105747_20240821.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}