{"id":"alj-H203255-2023-07-27","awcc_number":"H203255","decision_date":"2023-07-27","opinion_type":"alj","claimant_name":"David Penny","employer_name":"James M. Bozeman, LLC","title":"PENNY VS. JAMES M. BOZEMAN, LLC AWCC# H203255 JULY 27, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/PENNY_DAVID_H203255_20230727.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PENNY_DAVID_H203255_20230727.pdf","text_length":4883,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203255 \n \nDAVID K. PENNY, \nEMPLOYEE CLAIMANT \n \nJAMES M. BOZEMAN, LLC \nEMPLOYER RESPONDENT \n \nLUBA CASUALTY INS. CO., \nLUBA INSURANCE \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JULY 27, 2023 \n \nHearing conducted on Tuesday, July 26, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Sherri R. Arman, Lane, Muse, Arman & Pullen, \nHot Springs, Garland County, Arkansas, waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Carol Lockard Worley, Little Rock, Pulaski \nCounty, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Wednesday, July 26, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2020 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents filed a motion to dismiss with the Commission on April 10, 2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. In accordance with \napplicable Arkansas law, the claimant and his attorney of record were mailed due and proper legal \nnotice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at their current \naddresses of record. The claimant’s attorney advised both the Commission and the respondents’ \n\nDavid K. Penny, AWCC No. H203255 \n2 \n \nattorney in writing the claimant had no objection to the respondents’ motion to dismiss without \nprejudice, and waived appearance at the subject hearing. (Commission Exhibit 1). \n The record herein consists of the hearing transcript and any and all exhibits contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan recite a detailed analysis of the record, suffice it to say the preponderance of the evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has not \nprosecuted his claim at this time. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After having received due and legal notice of the respondents’ motion to dismiss, \n as well as due and legal notice of the subject hearing, the claimant’s attorney \n advised both the Commission and the respondents’ attorney in writing the \n claimant had no objection to the respondents’ motion to dismiss without \n prejudice, and waived appearance at the subject hearing. \n \n 3. Therefore, the respondents’ motion to dismiss without prejudice filed with \n the Commission on April 10, 2023, should be and hereby is GRANTED; and \n this claim is dismissed without prejudice to its refiling pursuant to the deadlines \n prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule \n 099.13. \n \n This opinion and order shall not be construed to prohibit the claimant, his attorney, any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling the \n\nDavid K. Penny, AWCC No. H203255 \n3 \n \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The respondents shall pay the court reporter’s invoice within twenty (20) days of their \nreceipt thereof. \n IT IS SO ORDERED. \n ______________________________ \n Mike Pickens \n Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203255 DAVID K. PENNY, EMPLOYEE CLAIMANT JAMES M. BOZEMAN, LLC EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., LUBA INSURANCE INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JULY 27, 2023 Hearing conducted on Tuesday, July...","fetched_at":"2026-05-19T23:05:45.994Z","links":{"html":"/opinions/alj-H203255-2023-07-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/PENNY_DAVID_H203255_20230727.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}