{"id":"alj-H204473-2023-06-21","awcc_number":"H204473","decision_date":"2023-06-21","opinion_type":"alj","claimant_name":"Phil Stuard","employer_name":"Amerities Founders, LLC","title":"STUARD VS. AMERITIES FOUNDERS, LLC AWCC# H204473 JUNE 21, 2023","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["back","strain","cervical","thoracic","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/STUARD_PHIL_H204473_20230621.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STUARD_PHIL_H204473_20230621.pdf","text_length":9592,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H204473 \n \n \nPHIL STUARD, \nEMPLOYEE                                                                                                               CLAIMANT \n \nAMERITIES FOUNDERS, LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nCHARTIS PROPERTY CASUALTY COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nAIG, INC.,                                                                                                                                   \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED JUNE 21, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents  represented  by  the  Honorable  Jarrod S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on June 20, 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 pursuant to the provisions of \nArk. Code Ann. §11-9-702 (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  June  20,  2023,  hearing  and  the  documents \ncontained therein.  The remainder of the Commission’s file has also been made a part of the record.  \n\nStuard – H 204473 \n \n2 \n \nIt is hereby incorporated herein by reference.  The Respondents’ Hearing Exhibit Index consisting \nof one cover page and eleven numbered pages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On  September  28,  2022,  the Claimant’s attorney filed  with  the  Commission  a  claim  for \nworkers’ compensation benefits on behalf of the Claimant by way of a Form AR-C.  Specifically, \nthe  Claimant’s  attorney alleged: “Claimant  was  in  the  course  and  scope  of  employment  and \nsustained injury to his back and other whole body.”  Per this form, the Claimant’s injury occurred \non  June  14,  2022.    His  attorney checked  all  the  boxes  for  both  initial  and  additional  workers’ \ncompensation benefits.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  June  28, \n2022, wherein they accepted compensability of the claim for a strain to the Claimant’s cervical, \nthoracic and lumbar spine.  \n On or about December 1, 2022, the Claimant’s attorney filed with the Commission a letter- \nmotion to be relieved as counsel of record.   The Full Commission entered an order granting the \nmotion for Claimant’s attorney to withdraw as counsel for the Claimant in this matter on or about \nDecember 13, 2022. \nSince this time and the filing of the Form AR-C, there has been no action taken on the part \nof the Claimant to prosecute this claim, or otherwise pursue benefits.  \nAs a result, on March 29, 2023, the Respondents filed with the Commission a Motion to \nDismiss for Failure to Prosecute, along with a Certificate of Service to the Claimant.  Specifically, \nthe  Respondents  mailed  a  copy  of  the  said  motion  to  the  Claimant  via  the  United  States  Postal \nService. \n\nStuard – H 204473 \n \n3 \n \nThe Commission sent a notice to the Claimant’s last known address on March 29, 2023, \ninforming him of the Respondents’ motion for dismissal.  Per this correspondence, the Claimant \nwas given a deadline of twenty days for filing a written response to the Respondents’ motion.  \n Subsequently, the United States Postal Service informed the Commission that on April 1, \n2023, the above referenced letter that the Commission sent to the Claimant, notifying him of the \nmotion to dismiss was delivered to his home and left with an individual.  However, the signature \nof the individual signing for delivery of this letter is scribbled. \n Yet, there was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated May 12, 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  June  20,  2023, at  10:00  a.m.,  at  the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \nThe United States Postal Service informed the Commission that on May 19, 2023, the letter \napprising the Claimant of the hearing on the Respondents’ motion to dismiss was delivered to his \nhome and left with a certain individual.   Yet again, the signature of the individual taking delivery \nof the Hearing Notice is illegible.     \nNevertheless, thus far there has been no response from the Claimant. \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \nfailed to appear at the hearing.  However, the Respondents appeared through their attorney.   \nCounsel essentially noted that the Claimant has failed to prosecute his claim for workers’ \ncompensation  benefits.    Counsel  also  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant to prosecute his claim since the filing of the Form AR-C over almost nine months ago.  \nPer counsel for the Respondents, the Claimant was released from medical care on November 21, \n\nStuard – H 204473 \n \n4 \n \n2022,  with  a  zero  percent  impairment.    Therefore,  counsel  moved  that  this  claim  be  dismissed \nwithout  prejudice  under  Ark.  Code  Ann.  §11-9-702,  and Arkansas  Workers’  Compensation \nCommission Rule 099.13. \nThe record before me demonstrates that a request for a hearing has not been filed by or on \nbehalf of the Claimant since the filing of the Form AR-C, which was approximately nine months \nago in September 2022.  Of significance is the Claimant’s failure to appear at the dismissal hearing.  \nMoreover, the Claimant has made no effort whatsoever to object to the dismissal of his claim, nor \nhas he responded to the notices of this Commission.  Hence, the preponderance of the evidence \nproves  that  the  Claimant  has failed  to  prosecute  his  claim  for  workers’  compensation  benefits.  \nThis  is  a  clear  illustration  that  the  Claimant  has  abandoned  his  claim.  Therefore,  based  on  the \nforegoing facts, the dismissal of this claim is well-founded, without prejudice, to the refiling of it \nwithin the limitation period specified by law.  That said dismissal should be and is hereby made \npursuant to the provisions of Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission Rule 099.13. \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. On September 28, 2022, the Claimant’s attorney filed a Form AR-C, with \nthe Commission, alleging that the Claimant sustained an injury to his back \nand other whole body while working for the respondent-employer on June \n14, 2022.   \n \n3. The respondent-insurance-carrier filed a Form AR-2, with the Commission \non or about June 23, 2022, accepting this claim as compensable for a strain \nto the Claimant’s cervical, thoracic, and lumbar spine.      \n \n\nStuard – H 204473 \n \n5 \n \n4. Since the filing of the Form AR-C virtually nine months ago, the Claimant \nhas failed to prosecute his claim and taken no action whatsoever to pursue \nit.    \n \n5. On March 29, 2023, the Respondents filed with the Commission, a Motion \nto Dismiss for Failure to Prosecute.   A hearing was held on the motion, but \nthe Claimant failed to appear at the hearing, and he has not objected to his \nclaim being dismissed or responded to the notices of this Commission. \n \n6. The evidence preponderates that the Claimant has failed to prosecute this \nclaim  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13.   \n \n7. Appropriate  notice  of  the  motion  and  dismissal  hearing  was  had  on  the \nClaimant to his last known address, in the manner prescribed by law.    \n \n            8. The Respondents’ motion to dismiss this claim for a lack of prosecution  is \nhereby granted, without prejudice pursuant to Ark. Code Ann. §11-9-702, \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule  099.13,  without  prejudice,  to  the  refiling  of it  within  the  limitation  period \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H204473 PHIL STUARD, EMPLOYEE CLAIMANT AMERITIES FOUNDERS, LLC, EMPLOYER RESPONDENT CHARTIS PROPERTY CASUALTY COMPANY, INSURANCE CARRIER RESPONDENT AIG, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 21, 2023 Hearing held before Administrati...","fetched_at":"2026-05-19T23:06:38.237Z","links":{"html":"/opinions/alj-H204473-2023-06-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/STUARD_PHIL_H204473_20230621.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}