{"id":"alj-H108068-2024-10-29","awcc_number":"H108068","decision_date":"2024-10-29","opinion_type":"alj","claimant_name":"Kathaleen Cole","employer_name":"Malvern School District","title":"COLE VS. MALVERN SCHOOL DISTRICT AWCC# H108068 October 29, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/COLE_KATHALEEN_H108068_20241029.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLE_KATHALEEN_H108068_20241029.pdf","text_length":11104,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H108068 \n \nKATHALEEN COLE,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nMALVERN SCHOOL DISTRICT,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nARKANSAS SCHOOL BOARDS ASSOC., WCT.,              \nINSURANCE CARRIER/TPA                                                                               RESPONDENT \n      \n        \n                                              OPINION FILED OCTOBER 29, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Hot Springs, Garland County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing. \n \nRespondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Motion to Dismiss for Failure \nto Prosecute filed by the Respondents.  A hearing was conducted on the motion for dismissal of \nthis claim on October 25, 2024, in Hot Springs, Arkansas.  Thus, the sole issue for determination \nis whether this claim should be dismissed due to the Claimant’s failure to timely prosecute it under \nthe  relevant  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas Workers’ \nCompensation Commission Rule 099.13. \n The record consists of October 25, 2024, hearing transcript and exhibits.  In that regard, \nCommission’s Exhibit No. 1 includes three actual pages, which has been marked accordingly, \nand Respondents’ Exhibit 1 consisting of fourteen numbered pages was marked as thus so.   \n No testimony was taken at the hearing.  \n\nCole – H108068 \n \n \n2 \n \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \napplicable law.   \n                            Background \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C, with the Commission on November 1, \n2022,  alleging that  the  Claimant  sustained  an  accidental  injury  on September  8,  2021,  while \nworking  for the  Malvern  School  District.  According  to  this document,  the Claimant allegedly \nsustained injuries to her head, left knee, left side, left elbow, left hand, and other whole body while \nworking for the respondent-employer.  The Claimant’s former attorney requested both initial and \nadditional workers’ compensation benefits.    \nThe  Respondents  filed  an  initial Form  AR-2  with  the  Commission.  Subsequently, the \nRespondents filed an amended Form AR-2 filed on or about October 11, 2021, accepting the claim \nas being compensable and paid some medical benefits and temporary total disability compensation \nto and on behalf of the Claimant.    \nThe Claimant’s attorney requested to withdraw from representing the Claimant in this \nmatter.    On December  6,  2022, the Full Commission entered an order allowing the Claimant’s \nattorney  to  withdraw  from  representing  the  Claimant  in this  case for workers’ compensation \nbenefits. \nSince the filing of Form AR-C, the Claimant has failed to pursue her claim for initial and/or \nadditional workers’ compensation benefits.  Hence, the Claimant failed to make a bona fide request \nfor a hearing on the merits in this matter.   \nTherefore, the Respondents filed with the Commission on August 30, 2024, a Motion to \nDismiss for Failure to Prosecute, along with a Certificate of Service to the Claimant.  Of note, on \n\nCole – H108068 \n \n \n3 \n \nthe Respondents’ Hearing Exhibit Index, the motion for dismissal in incorrectly name Motion to \nWithdraw. However, at the beginning of the hearing, the attorney for the Respondents made the \nhandwritten correction on the hearing index for this being a Motion to “Dismiss.”    \nOn September 3, 2024, my office wrote to the Claimant and requested a response to the \nmotion within twenty days.  The letter was sent by first-class and certified mail to the address listed \nby the Claimant with the Commission.   \nA dismissal hearing notice was sent to the parties on September 24, 2024, scheduling the \nhearing for October 25, 2024, at 8:30 a.m. at the Transportation Depot, Hot Springs.   Said notice \nwas sent to Claimant by first-class and certified mail to the same address as before.  The first-class \nletter was not returned.  Thus, the evidence preponderates that the Claimant received proper notice \nof the dismissal hearing.  \nThe hearing was in fact held as scheduled.   The  Claimant did not appear  at the hearing.  \nThe Respondents’ counsel argued that the Claimant has failed to prosecute her claim for workers’ \ncompensation  benefits.  Counsel  further  noted  that  the  Claimant  has  not  taken  any  affirmative \naction to prosecute her claim in more than six (6) months.  More specifically, Respondents’ counsel \nnoted that the Claimant has not taken any action to advance her claim since the filing of the Form \nAR-C, which was done more than two (2) years ago.   \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 with or without prejudice on this claim for \nboth initial and additional workers’ compensation benefits.   \n            Discussion  \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \n\nCole – H108068 \n \n \n4 \n \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \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 limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nMoreover, Ark. Code Ann. §11-9-702(d) 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 \nAs the moving party, the Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012) \nmust prove their entitlement to the relief requested—dismissal of this matter—by a preponderance \nof  the  evidence.    This  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. \n491, 206 S.W.2d 442 (1947).  \n\nCole – H108068 \n \n \n5 \n \n  With  respect  to the  evidence  recounted  above,  (1)  the  parties  were  provided  reasonable \nnotice of the Motion to Dismiss and the hearing on it; and (2) the Claimant has failed to pursue her \nclaim  because  she  has  taken  no  further  action  in  pursuit  of  it  since  the  filing  of  her claim  for  \nbenefits on November 1, 2022.     \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Moreover,  I  am  convinced  that  the  Claimant  has abandoned \nconsidering she has taken no action to object to the motion, and she has failed to respond to the \nnotices of this Commission.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion  to dismiss for  a  lack  of  prosecution  to  be  well  taken.  I thus find  that  pursuant  to the \npertinent provisions of Ark. Code Ann.§11-9-702, and Commission Rule 099.13, that this claim \nfor workers’ compensation benefits should be dismissed without prejudice to the refiling within \nthe limitation periods specified under the Arkansas Workers’ Compensation Act (the “Act”). \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. \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, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since her former attorney filed the \nForm AR-C, which was done more than two years ago.  Hence, the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  her  claim  for \nworkers’  compensation  benefits  based  upon  the  relevant  statutory \nprovisions   of   Ark.   Code   Ann. §11-9-702,   and   Rule   099.13   of   this \nCommission.       \n \n\nCole – H108068 \n \n \n6 \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  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation periods \nspecified by law. \n                                                           ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This dismissal is per Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13, without prejudice to the refiling of this claim within the \nlimitation periods specified under the Act. \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H108068 KATHALEEN COLE, EMPLOYEE CLAIMANT MALVERN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., WCT., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 29, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in Ho...","fetched_at":"2026-05-19T22:48:12.989Z","links":{"html":"/opinions/alj-H108068-2024-10-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/COLE_KATHALEEN_H108068_20241029.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}