{"id":"alj-H203233-2023-07-24","awcc_number":"H203233","decision_date":"2023-07-24","opinion_type":"alj","claimant_name":"Deja Smith","employer_name":"Polyethylene Containers, Inc","title":"SMITH VS. POLYETHYLENE CONTAINERS, INC. AWCC# H203233 JULY 24, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SMITH_DEJA_H203233_20230724.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_DEJA_H203233_20230724.pdf","text_length":7624,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H203233 \n \n \nDEJA SMITH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nPOLYETHYLENE CONTAINERS, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nFEDERATED MUTUAL INSURANCE COMPANY,  \nINSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR                          RESPONDENT  \n \n \n \nOPINION FILED JULY 24, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant  represented  by  the  Honorable  Mark  Alan  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas.  Mr. Peoples waived his right to participate in the hearing.  \n \nRespondents  represented  by  the  Honorable  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 12, 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 (d) (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  12,  2023,  hearing  and  the  documents \ncontained therein.   Also, the entire Commission’s file has been made a part of the record.   It is \n\nSmith – H 203233 \n \n2 \n \nhereby incorporated herein by reference.  The Respondents’ Hearing Exhibit consisting of  thirteen \npages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On August 2, 2022, the Claimant filed with the Commission a claim for Arkansas workers’ \ncompensation  benefits  by  way  of  a  Form  AR-C.    Specifically,  the  Claimant  alleged  that  she \nsustained injuries to her left hand on April 15, 2022 while performing employment duties for the \nrespondent-employer.  The Claimant requested additional workers’ compensation benefits in the \nform  of  temporary  total  disability,  temporary  partial  disability,  additional  permanent  partial \ndisability benefits, additional medical expenses, rehabilitation, and attorney’s fees.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  May  9, \n2022, wherein they accepted compensability on the claim. \n Since the filing of the Form AR-C, there has been no bona fide action on the part of the \nClaimant  to  prosecute  her  claim for  workers’  compensation  benefits,  or  otherwise  pursue a \nresolution to this matter.  \nOn May  1,  2023,  the  Respondents  filed  with  the  Commission a  Motion  to  Dismiss  and \nIncorporated Brief in Support requesting that the claim be dismissed for a lack of prosecution.  The \nRespondents notified the Claimant’s attorney of their motion for dismissal by way of mailing a \ncopy of it to her attorney via the United States Postal Service.  \nThe Commission mailed a letter notice to the Claimant’s attorney and to her last known \naddress  on May  3,  2023.  Said  letter  was  sent  by  first  class  mail  and  certified  mail.  Per  this \ncorrespondence, the Claimant was given a deadline of twenty days, for filing a written response to \nthe Respondents’ motion.  However, the United States Postal Service informed the Commission \nthat they were unable to find any delivery information in their records for this item of mail.  \n\nSmith – H 203233 \n \n3 \n \nOf significance, on May 3, 2023, the Claimant’s attorney wrote the following in an e-mail \nto the Commission, “Claimant will not oppose dismissal, provided it is without prejudice.  I would \nask to be excused from appearance at any hearing on the Motion.”    \nTherefore, pursuant to a Hearing Notice dated June 6, 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.    Said  hearing  was  scheduled  for July  12,  2023, at  10:30  a.m.,  at  the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Respondents appeared 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.  He also pointed out that the Claimant does not oppose \nthe  claim  being  dismissed  without  prejudice.    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. \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 the filing of the \nForm AR-C in August 2022.     The Claimant does oppose to the  claim being dismissed without \nprejudice.  However, if the Claimant intends to pursue her claim at a later date, she has sufficient \ntime to refile it with the Commission before the statute of limitations has run on it.  Therefore, per \nArk. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find that this claim should be \nand  is  hereby  respectfully  dismissed,  without  prejudice  to  the  refiling  of  it  with  the  limitation \nperiod specified by law.   \n\nSmith – H 203233 \n \n4 \n \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 \n2. The Respondents filed with the Commission, a motion to dismiss this claim \nfor which a hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute her \nclaim for workers’ compensation benefits and does not oppose to it being \ndismissed  without  prejudice.  Hence,  the  Claimant  has  not  requested  a \nhearing since the filing of the Form AR-C, which was done almost a year \nago.     \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 is hereby granted, without prejudice, \npursuant to Arkansas Code Ann. §11-9-702 and Commission Rule 099.13, \nto the refiling of it within the limitation period 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.: H203233 DEJA SMITH, EMPLOYEE CLAIMANT POLYETHYLENE CONTAINERS, INC., EMPLOYER RESPONDENT FEDERATED MUTUAL INSURANCE COMPANY, INSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 24, 2023 Hearing held before Administrative Law Judge Ch...","fetched_at":"2026-05-19T23:05:37.498Z","links":{"html":"/opinions/alj-H203233-2023-07-24","pdf":"https://labor.arkansas.gov/wp-content/uploads/SMITH_DEJA_H203233_20230724.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}