{"id":"alj-H203380-2023-05-25","awcc_number":"H203380","decision_date":"2023-05-25","opinion_type":"alj","claimant_name":"Juan Nieves","employer_name":"A B M Industries, Inc","title":"NIEVES VS. A B M INDUSTRIES, INC. AWCC# H203380 MAY 25, 2023","outcome":"dismissed","outcome_keywords":["dismissed:2"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/NIEVES_JUAN_H203380_20230525.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NIEVES_JUAN_H203380_20230525.pdf","text_length":7201,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203380 \n \nJUAN R. NIEVES,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nA B M INDUSTRIES, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nINDEMNITY INS. CO. Of NORTH AMERICA/ \nESIS, INC. \nCARRIER/TPA                                                                                             RESPONDENT \n \n                                                                                                                     \n \nOPINION AND ORDER FILED MAY 25, 2023, TO HOLD RESPONDENTS’ MOTION \nTO DISMISS WITHOUT PREJUDICE IN ABEYANCE FOR 30 DAYS \n \n \nHearing conducted on Wednesday, May 24, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Juan R. Nieves, pro se, of Little Rock, Pulaski County, Arkansas, appeared at \nthe hearing. \n \nThe respondents were represented by the Honorable Eric Newkirk, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Wednesday, May 24 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis \nReplacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n     On  April  3,  2023,  the  respondents  filed  with  the  Commission  a  motion  to  dismiss  without \nprejudice (MTD) for lack of prosecution. Thereafter, pursuant to the applicable law and in advance \nof the hearing the claimant was mailed a copy of the respondents’ MTD and the subject hearing \nnotice. The claimant, Mr. Juan R. Nieves, appeared in person at the hearing. He advised he did in \nfact intend to pursue his claim; he was willing to cooperate with the respondents’ in completion of \n\nJuan R. Nieves, AWCC No. H203380 \n2 \n \nnecessary and appropriate discovery including but not limited to his sworn deposition testimony; \nand that he would file a response to the prehearing questionnaire, as he did not recall receiving this \ndocument. In addition, both the claimant and the respondents’ attorney agreed that, presuming they \nwere  able to resolve  a possible medical lien issue, they expected the claim may be settled via a \njoint petition settlement agreement in due course. \n     Consequently, both the claimant and the respondents’ attorney agreed  in  requesting  the  ALJ \nhold in abeyance a decision on the respondents’ MTD filed April 3, 2023, for a period of 30 days, \nor until Friday, June 23, 2023. The parties will advise the ALJ on or before this date – Friday, June \n23, 2023 – as to whether any and all issues have been resolved, or if the claimant wishes to proceed \nto a hearing. If the issues have not been resolved, the parties may request additional time to resolve \nthem, if needed, or may ask for any and all other appropriate Commission action or relief as may \nbe necessary.  \n     If any and all outstanding issues have not been resolved as expected by Friday, June 23, 2023, \nand  the  claimant  advises  he  wishes  to  proceed  to  a  hearing,  he  shall  file  his  prehearing \nquestionnaire response in a timely manner. If the claimant fails to cooperate with the respondents \nin the discovery process; or if he fails to file a timely response to the prehearing questionnaire the \nALJ will draft and enter an opinion and order of dismissal without prejudice without the necessity \nof the respondents’ having to draft and file another motion, and without the necessity of the ALJ \nconducting another hearing on the respondents’ MTD.  \n    The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \n \n \n\nJuan R. Nieves, AWCC No. H203380 \n3 \n \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard 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 failed \nand/or refused to prosecute 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 \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due  and  legal  notice  of  both  the  respondents’  MTD  and  the \nsubject hearing date, time, and place, the claimant appeared in person, pro se, at the hearing. \n \n3. The claimant advised on the record he wished to pursue his claim. \n \n4. The ALJ shall hold in abeyance a decision on the respondents’ subject motion to \ndismiss without prejudice for a period of 30 days, or until Friday, June 23, 2023.  \n \n5. The parties have 30 days from the hearing date, or until Friday, June 23, 2023, to obtain \n             any and all additional information they require and to resolve the aforementioned issues.  \n \n6. The parties shall advise the ALJ on or before Friday, June 23, 2023, whether the subject \nissues have been resolved. If the parties have not resolved the issues by the agreed deadline \nthey may request additional time to do so, or may request any and all other Commission \naction and/or relief as may be deemed necessary and appropriate under the circumstances.  \n \n7. Moreover,  if  any  and  all  outstanding  issues  have not been  resolved  to  the  parties’ \nsatisfaction by Friday, June 23, 2023, the claimant shall file his response to the prehearing \nquestionnaire in a timely manner. If he fails to do so, or if he fails to cooperate with the \nrespondents  in  the  discovery  process,  the  ALJ  shall  draft  and  file  an  opinion  and  order \ngranting the respondents MTD without prejudice, and may do so without the necessity of \neither the respondents filing another motion, and without the necessity of the Commission \nholding another hearing on the motion.  \n\nJuan R. Nieves, AWCC No. H203380 \n4 \n \n \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \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 \n \n \n \nMP/mp \n \n \n\nJuan R. Nieves, AWCC No. H203380 \n5","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203380 JUAN R. NIEVES, EMPLOYEE CLAIMANT A B M INDUSTRIES, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. Of NORTH AMERICA/ ESIS, INC. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 25, 2023, TO HOLD RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN ...","fetched_at":"2026-05-19T23:07:59.723Z","links":{"html":"/opinions/alj-H203380-2023-05-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/NIEVES_JUAN_H203380_20230525.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}