{"id":"alj-H106924-2024-04-16","awcc_number":"H106924","decision_date":"2024-04-16","opinion_type":"alj","claimant_name":"Terry Sanders","employer_name":null,"title":"SANDERS VS. AIRGASS USA, LLCAWCC# H106924April 16, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SANDERS_TERRY_H106924_20240416.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDERS_TERRY_H106924_20240416.pdf","text_length":7387,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H106924 \n \nTERRY SANDERS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGASS USA, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nAIU INS. CO./ \nGALLAGHER BASSETT SERVICES, INC. \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED APRIL 16, 2024 \n \nHearing conducted on Thursday, April 11, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, \nUnion County, Arkansas. \n \nThe claimant, Mr. Terry Sanders, pro se, of El Dorado, Union County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones Law \nFirm, Little Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, April 11, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Repl.). \n        This claim was the subject of a prior hearing based on the respondents’ motion to dismiss for \nlack of prosecution. On August 4, 2023, the respondents filed their first motion to dismiss for lack \nof prosecution and incorporated brief in support thereof (8/24/2023 MTD) with the Commission. \nA hearing was conducted on this motion on October 10, 2023. The claimant appeared in person at \nthe MTD hearing, and advised the ALJ on the record he wished to request a hearing on his claim. \nTherefore, the ALJ denied the respondents’ 8/24/2023 MTD, and his office sent out to the parties \n\nTerry Sanders, AWCC No. H106924 \n2 \n \nthe prehearing questionnaire documents in anticipation of setting a prehearing teleconference, and \nproceeding   to   a   hearing.   (October   10,   2023, Hearing Transcript;   Opinion   Denying   the \nRespondents’ MTD filed October 12, 2023. And see, Respondents’ Exhibit 1 of the April 11, 2024, \nhearing, at 10-13). Thereafter, even after having formally requesting a hearing on the record and \nhaving received the prehearing questionnaire documents, the claimant failed and/or refused to file \na prehearing  response, or to communicate  with the Commission or the respondents in any way. \n(RX1 at 14).  \n       Consequently,  the  respondents’  renewed  their  request  this  claim  be  dismissed  without \nprejudice via email to the ALJ dated January 5, 2024, based on the 8/24/2023 MTD, as well as the \nfact the claimant failed and/or refused to respond to the prehearing questionnaire, and/or take any \nsteps whatsoever to prosecute his claim since the ALJ’s October 12, 2023, opinion denying the \nrespondents’ request for dismissal at that time. (RX1 at 15).  \n       Pursuant  to  the  applicable  law and  in  advance  of  the second hearing on the respondents’ \nrenewed MTD request, the claimant was mailed a copy of the respondents’ second MTD request \nand the subject hearing notice via the United States Postal Service (USPS), Certified Mail, Return \nReceipt Requested, which he received on February 2, 2024. (Commission’s Exhibit 1). Thereafter, \nthe claimant failed and/or refused to object to the respondents’ MTD, or to respond in any way to \neither the Commission or to the respondents; and he failed and/or refused to appear at the subject \nhearing. (4/11/2024 Hearing Transcript; RX1). \n       The record herein consists of the hearing transcript of the first MTD hearing held on October \n10, 2023, and any and all exhibits contained therein and attached thereto; as well as the hearing \ntranscript  and  any  and  all  exhibits  contained  therein  and  attached  thereto  of  the  second  MTD \nhearing conducted on April 11, 2024 (herein incorporated by reference). \n\nTerry Sanders, AWCC No. H106924 \n3 \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed and received due and legal notice of both the respondents’ current \nMTD and  the  subject  hearing date, time,  and  place, the  claimant neither  inquired \nconcerning nor objected nor responded to the motion in any way, and he did not appear, \nnor  cause  anyone  to  appear  on his behalf, at  the  subject  hearing – the  second  hearing \nconducted  on  the  respondents’  request  this  claim  be  dismissed  without  prejudice. \nTherefore, the claimant is deemed to have waived his right to a hearing on the respondents’ \ncurrent motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing within the last six (6) \nmonths, and he has failed and/or refused to take any action(s) whatsoever to prosecute his \nclaim, including but not limited to his failure and/or refusal to respond to the prehearing \nquestionnaire documents the ALJ’s office forwarded to both parties after the first October \n10, 2023, hearing on the respondents’ 8/24/2023 MTD. \n \n4. Therefore, the respondents’ current motion to dismiss without prejudice renewed by email \ndated January 5, 2024, should be hereby is GRANTED; and this claim is dismissed without \nprejudice to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. Section 11-\n9-702(a) and (b), and Commission Rule 099.13. \n \n\nTerry Sanders, AWCC No. H106924 \n4 \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106924 TERRY SANDERS, EMPLOYEE CLAIMANT AIRGASS USA, LLC, EMPLOYER RESPONDENT AIU INS. CO./ GALLAGHER BASSETT SERVICES, INC. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED APRIL 16, 2024","fetched_at":"2026-05-19T22:55:25.777Z","links":{"html":"/opinions/alj-H106924-2024-04-16","pdf":"https://labor.arkansas.gov/wp-content/uploads/SANDERS_TERRY_H106924_20240416.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}