{"id":"alj-H203239-2024-08-06","awcc_number":"H203239","decision_date":"2024-08-06","opinion_type":"alj","claimant_name":"James Smith","employer_name":null,"title":"SMITH VS. BULL MOTOR CO.AWCC# H203239August 6, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:3"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Smith_James_H203239_20240806.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_James_H203239_20240806.pdf","text_length":6768,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203239 \n \nJAMES J. SMITH, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBULL MOTOR CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nCENTRAL AR. AUTO DEALERS SIF., \nCARRIER/TPA                                                                                                    RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                        RESPONDENT  \n \nOPINION FILED AUGUST 6, 2024 \n \nHearing conducted on Thursday, August  2,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant represented himself, Pro Se, Wheatley, Arkansas.  \n \nThe Respondents were represented by the Honorable Melissa Wood, 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 August 2, 2024, in Forrest City, Arkansas. No testimony was taken in \nthe  case.  Claimant, according to the Commission’s file, is Pro  Se. Admitted  into  evidence was \nRespondent Exhibit 1, pleadings, correspondence, consisting of 10 pages. I have also blue-backed \nForm AR-1, hearing notice for August 2, 2024, and Melanie Miller email dated June 20, 2024, as \ndiscussed infra. \nThe  record  reflects on April  29,  2022,  a  Form  AR-C was  filed purporting  that  Claimant \nsustained injuries to his right shoulder and upper arm while unloading a transmission from a truck. \nThe tailgate of the truck  failed, during the unloading, causing the transmission to drop onto the \n\nSMITH, AWCC No. H203239 \n \n2 \n \nright shoulder and upper arm. On May 9, 2022, a Form AR-1 was filed alleging the injury took \nplace   December   28,   2020.   The   form   further   states   that   the   incident   was   reported   to \nRespondent/Employer   on   May   2,   2022.   The   Claimant   worked   as   a   service   tech   for \nRespondent/Employer.    On May  9,  2022,  and  again  on February  15,  2023, Respondents  filed a \nForm AR-2 and each form did not state a reason for controverting the claim.  Respondents, in a \nletter  dated  December  12,  2022,  agreed  to  pay  Claimant  5%  to  the  body  based  on his  treating \nphysicians (Dr. Swymm’s) report. Respondents filed a Motion to Dismiss, via letter, on October \n4, 2023. The motion alleges, in short, a failure to prosecute by the Claimant. Claimant was sent \nnotice of  the  Motion  to  Dismiss certified and  regular  First-Class  Mail on October  9,  2023.  The \nClaimant responded to the motion on October 30, 2023. The Claimant objected to the dismissal on \nthe  grounds  that  he  wanted  to  reach  maximum  medical  improvement  and  his  permanent  partial \ndisability  rating  has  been  established.  Claimant  further  alleges  his  possible  need  for  wage  loss \nbenefits. Respondents withdrew their motion to dismiss and, the Claimant his request for a hearing, \nand the file was returned to general files on November 6, 2023.  \nRespondents  next  filed  another  Motion  to  Dismiss  through  attorney,  Melissa  Wood,  for \nfailure to prosecute his claim on April 29, 2024. This motion alleges the same as the first, failure \nto prosecute. The notice sent out both certified and regular U.S. First-Class Mail on May 29, 2024. \nClaimant did not claim the certified notice of the Motion to Dismiss but the notice sent regular \nU.S. First Class mail was not returned to the Commission. The Claimant did not respond to the \nMotion to Dismiss in writing.  \nDespite granting the waiver and in accordance with applicable Arkansas law, the Claimant \nwas mailed due  and proper legal notice of the hearing date via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested, and  regular  First-Class  Mail on \n\nSMITH, AWCC No. H203239 \n \n3 \n \nJune  20,  2024,  to  his  address  of  record.  The  certified  notice  was not  claimed  by  Claimant. \nHowever, the  regular  First-Class  mail hearing notice  was not returned to  the  Commission. The \nhearing took place on August 2, 2024. \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 \n2. The Claimant and Respondents both had reasonable notice of the August 2, 2024, \nhearing. \n \n3. Respondents  have  proven  by  a  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. Claimant did not claim the certified \nhearing notice sent to his address of record. However, the hearing notice sent U.S. First-Class mail, \nto  his  address  of  record,  was  not  returned  to  the  Commission.  The  Claimant  is  responsible  for \nkeeping the Commission updated on his current address. Thus, I find by the preponderance of the \nevidence that Claimant received reasonable notice of the Motion to Dismiss hearing.  \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 filed his Form AR-C on April \n29,  2022. Since returning Claimant’s file to general files on November 6, 2023, no bona  fide \n\nSMITH, AWCC No. H203239 \n \n4 \n \nrequest for a hearing has occurred. Therefore, I do find that the Respondents have proven by the \npreponderance of the evidence that Claimant has failed to prosecute his claim. Thus, Respondents’ \nMotion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203239 JAMES J. SMITH, EMPLOYEE CLAIMANT BULL MOTOR CO., EMPLOYER RESPONDENT CENTRAL AR. AUTO DEALERS SIF., CARRIER/TPA RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED AUGUST 6, 2024 Hearing conducted on Thursday, August 2, 2024, before th...","fetched_at":"2026-05-19T22:49:52.188Z","links":{"html":"/opinions/alj-H203239-2024-08-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/Smith_James_H203239_20240806.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}