{"id":"alj-H109094-2024-06-10","awcc_number":"H109094","decision_date":"2024-06-10","opinion_type":"alj","claimant_name":"Brian Merrill","employer_name":null,"title":"MERRILL VS. CITY OF JONESBOROAWCC# H109094June 10, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:3"],"injury_keywords":["fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Merrill_Brian_H109094_20240610.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Merrill_Brian_H109094_20240610.pdf","text_length":5998,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109094 \n \nBRIAN MERRILL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF JONESBORO, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nARKANSAS MUNICIPAL LEAGUE., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \nOPINION FILED JUNE 10, 2024 \n \nHearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Brian Merrill was represented by the Honorable Phillip J. Wells, Jonesboro, \nArkansas.  \n \nThe Respondents were represented by the Honorable Mary K. Edwards, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 24, 2024, in Forrest City, Arkansas. No testimony was taken in the \ncase. Claimant’s attorney appeared at the hearing to respond to the motion. \nThe Claimant worked for the Respondent/Employer as a police officer. The Claimant was \nallegedly injured when a third party failed to yield resulting in a traffic collision on November 10, \n2021. Admitted  into  evidence  was Respondent  Exhibit  1, medical  records, consisting  of fifteen \npages. Respondent Exhibit 2, correspondence, and pleadings, consisting of thirteen pages. I have \nalso blue-backed Form AR-1, Form AR-2, and Form AR-C, as discussed infra. \nThe record reflects on January 10, 2022, a Form AR-C was filed with the Commission by \nAttorney Phillip Wells. This form reflects that Claimant, while transporting an inmate to the county \n\nMERRILL, AWCC No. H109094 \n \n2 \n \njail, was struck by another vehicle that ran a red light on November 10, 2021. Claimant allegedly \nsustained a head laceration, face scratches, and an open tibia and fibula fracture to the right leg. \nThese injuries were reported to the Respondent/Employer the same day as the vehicle incident. On \nNovember 15, 2021, a Form AR-1 was filed in this case, reflecting that Claimant was purportedly \ninvolved in a traffic collision. Respondents on November 24, 2021, filed a Form AR-2, that stated \nno grounds for disputing the claim. The Respondents officially accepted the claim via letter dated \nFebruary 11, 2022. Since that time benefits have been paid.  \nOn February 28, 2024, Respondents filed a Motion to Dismiss citing Claimant’s failure to \nprosecute his claim. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of the Motion to Dismiss hearing date at his current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail. The certified notice was claimed by Claimant on March 21, 2024. \nThe hearing took place on May 24, 2024.  \nClaimant’s counsel, during the hearing, opposed the motion stating that Claimant wants to \nkeep the claim open for future medical. Claimant’s counsel did admit that all required benefits \nhave  been  paid  by  the  Respondents;  and  there  is  no  need  for  a full-hearing. Both  parties  have \nagreed that there are no issues to litigate in this claim. The last date that benefits were paid was on \nJuly 19, 2023.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  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: \n \n1. The Commission has jurisdiction over this claim. \n \n\nMERRILL, AWCC No. H109094 \n \n3 \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 3,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Respondents argued that all benefits \nwere  paid.  The  last  benefit  payment  was  made  on  July  19,  2023.  No  other  benefits  have  been \nrequested by Claimant since that date. Claimant’s counsel did not dispute the payment of benefits \nrather wanted to keep the claim open for future medicals. Claimant counsel agreed that there are \nno disputed issues with this claim. Essentially, Claimant’s counsel wants the claim to be held open \nin perpetuity in the event of future medicals. This position runs counter to AWCC Rule 099.13.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has filed his Form AR-C on \nJanuary 10, 2022. Since then, Claimant has taken no action in furtherance of the prosecution of \nthis claim. Therefore, I do find the Respondents have proven by the preponderance of the evidence \nthat Claimant has failed to prosecute his claim. And as a result, Respondents’ Motion to Dismiss \nshould be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n\nMERRILL, AWCC No. H109094 \n \n4 \n \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109094 BRIAN MERRILL, EMPLOYEE CLAIMANT CITY OF JONESBORO, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 10, 2024 Hearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers...","fetched_at":"2026-05-19T22:52:31.761Z","links":{"html":"/opinions/alj-H109094-2024-06-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/Merrill_Brian_H109094_20240610.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}