{"id":"alj-H202136-2023-07-25","awcc_number":"H202136","decision_date":"2023-07-25","opinion_type":"alj","claimant_name":"Tina Smith","employer_name":"Riverview Behavioral Health, LLC","title":"SMITH VS. RIVERVIEW BEHAVIORAL HEALTH, LLC AWCC# H202136 JULY 25, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SMITH_TINA_H202136_20230725.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_TINA_H202136_20230725.pdf","text_length":9096,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H202136 \n \n \nTINA SMITH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nRIVERVIEW BEHAVIORAL HEALTH, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nSAFETY NATIONAL CASUALTY COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED JULY 25, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.  \n \nRespondents represented by the Honorable Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 14, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann.  §11-9-702  (Repl.  2012),  and Arkansas  Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  14,  2023,  hearing  and  the  documents \ncontained therein. Specifically, the Respondents’ Hearing Exhibit consisting of seventeen pages \n\nSmith – H 202136 \n \n2 \n \nwas marked as Respondents’ Exhibit 1.    Additionally, the entire Commission’s file has been made \na part of the record.  It is hereby incorporated herein by reference.   \n                                                                  Discussion \n On  March  14,  2022,  the Claimant’s  attorney  filed  with  the  Commission  a  claim  for \nArkansas workers’ compensation benefits by way of a Form AR-C.  The Claimant alleged that she \nsustained an injury to her back on November 3, 2021, while performing employment duties for the \nrespondent-employer.    The Claimant’s  attorney  requested  both  initial  and  additional workers’ \ncompensation  benefits.    In  fact,  he  checked  all  the  boxes  for  every  conceivable  benefit  in \nconnection with this claim. \n The Claimant’s attorney requested a hearing per correspondence filed with the Commission \non April 26, 2022. \n Therefore,  on  April  29,  2022,  the  Commission  began  the  prehearing  process  by  mailing \nPrehearing Questionnaires and Notices to the parties.  On June 1, 2022, the Commission set this \nclaim for a prehearing telephone conference, which was scheduled to be conducted on June 28, \n2022.  The Claimant’s deposition was taken on June 16, 2022.  However, on June 28, 2022, the \nparties jointly asked that the matter be removed from the docket because they needed additional \ntime  to  complete  discovery.    As  a  result,  on  that  same  date,  the  Commission  cancelled  the \nprehearing telephone conference, and the claim was returned to the Commission’s general files.       \n  The  Claimant’s  attorney filed  with  the  Commission  a  Motion  to  Withdraw  from \nrepresenting  the  Claimant  in  this  matter  on  August  11,  2022.   The  Full  Commission  entered  an \norder granting the Claimant’s attorney motion to withdraw from representing her in this matter on \nAugust 26, 2022.   \n\nSmith – H 202136 \n \n3 \n \n Since this time, the Claimant has remained pro se.  Moreover, there has been no bona fide \naction on the part of the Claimant to prosecute her claim for workers’ compensation benefits, or \notherwise pursue a resolution to this matter.   \nAs a result, on March 22, 2023, the Respondents filed with the Commission a Respondents’ \nMotion  to  Dismiss  for  a  lack  of  prosecution.    The  Respondents  notified  the  Claimant  of  their \nmotion for dismissal by way of depositing a copy thereof in the United States Mail.  \nThe Commission mailed a letter-notice to the Claimant to her last known address with the \nCommission on March 22, 2023.  Said letter was sent by first-class mail and certified mail.  Per \nthis  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to the Respondents’ motion. \nYet, there has been no response from the Claimant.   \nHowever, the United States Postal Service informed the Commission on March 27, 2023, \nthat they delivered this item to the Claimant’s residence and left it with an individual.  The return \nreceipt bears the Claimant’s printed name and signature.  \nTherefore, pursuant to a Hearing Notice dated June 12, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    The  notice  was  sent  to  the  Claimant  via  certified  and  first-class  mail.  \nSaid hearing was scheduled for July 14, 2023, at 2:00 p.m., at the Miller County Juvenile Justice \nCenter in Texarkana, Arkansas. \nThe  hearing  notice  sent  to  the  Claimant  via  certified  mailed  was  returned  to  the \nCommission marked “Return to sender.  Unclaimed.”  However, the notice sent by first class mail \nhas not been returned to the Commission.  \nStill, there has been no response from the Claimant.  \n\nSmith – H 202136 \n \n4 \n \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel  noted  that  the  Claimant  has  failed  to  timely  prosecute  her claim  for  workers’ \ncompensation  benefits.    Counsel  further  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant  to  move  forward  with  a  hearing  since  the  taking  of  her  deposition  on  June  16,  2022.  \nCounsel indicated, among other things, that at the time of her deposition, the Claimant essentially \nstated  that  she  did  not  wish  to  pursue  her  claim.    Therefore,  counsel  moved  that  this  claim  be \ndismissed under Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission \nRule 099.13, without prejudice due to all the afore reasons. \nThe record before me proves that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits.  The Claimant has not requested a hearing since her attorney was \nallowed to withdraw from representing her almost a year ago.  She failed to appear at the hearing \nto object to her claim being dismissed and she has not responded to the notices of this Commission. \nUnder  these  circumstances,  I  am  compelled  to  find  that  the  evidence  preponderates  that  the \nClaimant has abandoned her claim.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of \nthis  Commission,  I  find  that  this  claim  should  be  and  is  hereby  respectfully  dismissed,  without \nprejudice to the refiling of it with the limitation period specified by law.   \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 \n\nSmith – H 202136 \n \n5 \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 attorney was allowed to \nwithdraw from representing her in this matter, which was almost a year ago. \nHence, the evidence preponderates that the Claimant failed to prosecute her \nclaim for workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last 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, pursuant to Arkansas Code Ann. §11-9-\n702, and Commission Rule 099.13, to the refiling of it within the limitation \nperiod specified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis  hereby  dismissed  pursuant   to  Arkansas  Code  Ann.  11-9-702,  and  Arkansas Workers’ \nCompensation  Commission  Rule  099.13, without  prejudice,  to  the  refiling  of it,  within  the \nlimitation period specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H202136 TINA SMITH, EMPLOYEE CLAIMANT RIVERVIEW BEHAVIORAL HEALTH, LLC, EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY COMPANY, INSURANCE CARRIER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 25, 2023 He...","fetched_at":"2026-05-19T23:05:41.789Z","links":{"html":"/opinions/alj-H202136-2023-07-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/SMITH_TINA_H202136_20230725.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}