{"id":"alj-H202246-2023-01-05","awcc_number":"H202246","decision_date":"2023-01-05","opinion_type":"alj","claimant_name":"Tony Johnson","employer_name":"L&m Mowing Service, LLC","title":"JOHNSON VS. L&M MOWING SERVICE, LLC AWCC# H202246 JANUARY 5, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_TONY_H202246_20230105.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_TONY_H202246_20230105.pdf","text_length":8559,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO.: H202246 \nTONY JOHNSON, \nEMPLOYEE CLAIMANT   \nL&M  MOWING SERVICE, LLC, \nEMPLOYER RESPONDENT \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINISTRATOR    RESPONDENT  \n  OPINION FILED JANUARY 5, 2023 \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  CHANDRA  L.  BLACK,  in  Little  Rock, \nPulaski County, Arkansas. \nClaimant, pro se, not appearing.     \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, Arkansas. \n STATEMENT OF THE CASE     \nA  hearing  was  held  on the Respondents’ motion to dismiss for want of prosecution, on \nJanuary 4, 2023, in this claim for workers’ compensation benefits pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Specifically, the sole issue \nfor  determination  was  whether  this  claim  should  be  dismissed due to the Claimant’s failure  to \npunctually prosecute it pursuant to the provisions of Ark. Code Ann. §11-9-702 (a)(4) (Repl. 2012) \nand/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nReasonable notice of the dismissal hearing was had on all parties in the manner prescribed \nby law.  \nThe  record  consists  of  the   hearing  transcript  from  January  4,  2023.    The  entire \nCommission’s file has been made a part of the record.    It  is  hereby  incorporated  herein  by \nreference.   \n\nJohnson – H202246 \n \n2 \n \n No testimony was taken at the hearing. \n                   Procedural Background  \n The record reflects the following procedural history: \nThe Claimant filed a Form AR-C with the Commission in the above-styled claim on March  \n17, 2022.   Per this document, the Claimant asserted that he sustained an accidental injury while \nworking for the respondent-employer on December 3, 2022.  Specifically, the Claimant asserted \nin this document that he was involved in an accidental injury at work when he fell off a tractor.  \nThe Claimant’s  fall  allegedly  caused  an  injury  to  his  left  leg,  which  resulted  in  him  having  to \nundergo surgery.  At that time of the filing of the Form AR-C, the Claimant requested both initial \nand  additional  benefits.  Specifically,  the  Claimant  requested  initial  benefits  in  the  form  of \ntemporary partial disability, medical expenses, and strangely enough for attorney fees.  However, \nthere is no indication in the record that the Claimant is a licensed attorney; or that he has retained \na lawyer to represent him in  this  matter.  Also,  pursuant to this form the Claimant claimed his \nentitlement to additional rehabilitation benefits. \nOn  March  25,  2022  the  Respondent-insurance  carrier  filed  a  Form  AR-2  with  the \nCommission.  Per this document, the carrier denied this claim on the grounds that “Claimant did \nnot sustain an injury arising out of the course and scope of his employment.”   \nSince the filing of the Form AR-C in March 2022, there has been no action taken on the \npart of the Claimant to prosecute his claim for workers’ compensation benefits.   \nTherefore, on November 7, 2022, the Respondents filed with the Commission a Motion to \nDismiss for Failure Prosecute.  On that same day, the Respondents served a copy of the foregoing \npleading on the Claimant by way of mailing it via the United States Postal Service.      \n\nJohnson – H202246 \n \n3 \n \nSubsequently, on November 8, 2022  I sent a letter to the Claimant informing him of the \nmotion, with a deadline of November 28, 2022 for filing a written objection.  On November 10, \n2022, the Postal Service delivered this item to the Claimant by leaving a copy of it at his residence.   \nThe electronic return receipt bears the Claimant’s signature for delivery of this parcel of mail.   \nHowever,  there was no answer from the Claimant.  \nOn December 5, 2022, a Notice of Hearing was issued.  It was sent via certified mail to the \nparties letting them know that a hearing on the Respondents’ motion for dismissal was scheduled \nfor  January  4,  2023  in  Little  Rock,  Arkansas.    In  the  regard,  on  December  17,  2022,  the  Postal \nService delivered the Hearing Notice to the Claimant’s home.  The electronic return receipt shows \nthat the Claimant signed for delivery of the Notice.  \nTo date, there has been no reply from the Claimant.  \nA hearing was in fact conducted on the Respondents’ motion to dismiss as scheduled.  The \nClaimant  did  not  appear  at  the  hearing  to  object  to  his workers’ compensation claim being \ndismissed.  However, the Respondents’ attorney appeared for the hearing.   \nDuring  the  hearing,  counsel  moved  that  this  claim  be  dismissed  due  to  a  lack  of \nprosecution.  Counsel specifically asked that the dismissal be made under  the provisions of Ark. \nCode Ann. §11-9-702 and Commission Rule 099.13.   The applicable law and Commission Rule \nare set forth below.  \n                         Discussion \nIn that regard, Ark. Code Ann. §11-9-702(a)(4) (Repl. 2012) reads:  \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 the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n\nJohnson – H202246 \n \n4 \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 \nMy  review  of  the  record  shows  that  more  than  six  (6)  months  have  elapsed  since  the \nClaimant filed the Form AR-C in his assertion for workers’ compensation benefits.  In fact, it has \nbeen almost ten (ten) months since the filing of the Form AR-C, which was done in March 2022.  \nHowever, since this time, the Claimant has failed to make a bona fide request for a hearing with \nrespect  to  his  claim  for  compensation.  The  Claimant  has  not  responded  to  the  Notices  of  this \nCommission.  Moreover, the Claimant did not appear at the hearing to object to his claim being \ndismissed.     \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore the Commission, I find that the Respondents’ motion to dismiss this claim is well founded \nunder Ark. Code Ann. §11-9-702 (a)(4) (Repl. 2012) and Commission Rule 099.13.  Accordingly, \nthis  claim  is  respectfully  dismissed  without  prejudice,  to  the  refiling  of  it  within  the  limitation \nperiod 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): \n\nJohnson – H202246 \n5 \n1.The Arkansas Workers’ Compensation Commission has jurisdiction of this\nclaim.\n2.Reasonable notice of the dismissal hearing was attempted on all the parties\nin the manner prescribed by law.\n3.The  evidence  preponderates  that the Respondents’ Motion  to  Dismiss  for\nFailure to Prosecute is warranted.\n4.That the Respondents’ motion is hereby granted pursuant to Ark. Code Ann.\n§11-9-702  (a)  (4)  (Repl.  2012)  and  Commission  Rule  099.13,  without\nprejudice, to the refiling of the claim within the specified limitation period.\nORDER \nBased on the foregoing findings of fact and conclusions of law, this claim is respectfully \ndismissed  without  prejudice  under  Ark.  Code  Ann.  §11-9-702(a)(4)  and  Rule  099.13, to  the \nrefiling of it within the limitation period specified by law.     \nIT IS SO ORDERED. \n________________________________ \n  CHANDRA L. BLACK  \nAdministrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H202246 TONY JOHNSON, EMPLOYEE CLAIMANT L&M MOWING SERVICE, LLC, EMPLOYER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, Pul...","fetched_at":"2026-05-19T23:10:56.147Z","links":{"html":"/opinions/alj-H202246-2023-01-05","pdf":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_TONY_H202246_20230105.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}