{"id":"alj-H204853-2024-07-23","awcc_number":"H204853","decision_date":"2024-07-23","opinion_type":"alj","claimant_name":"Justin Calloway","employer_name":null,"title":"CALLOWAY VS. CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.AWCC# H204853July 23, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:2"],"injury_keywords":["back","lumbar","thoracic"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/CALLOWAY_JUSTIN_H204853_20240723.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CALLOWAY_JUSTIN_H204853_20240723.pdf","text_length":12044,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                 AWCC CLAIM NO.: H204853 \n \nJUSTIN CALLOWAY,  \nEMPLOYEE                                                                                                                 CLAIMANT                                                    \n \nCLEAN HARBORS ENVIRONMENTAL SERVICES, INC.,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nINDEMITY INSURANCE COMPANY OF NORTH AMERICA \n(PA), INSURANCE CARRIER                                                                              RESPONDENT \n                                                                             \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR (TPA)                                                         RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED JULY 23, 2024    \n \nHearing  held  before Administrative Law Judge Chandra L.  Black, in El  Dorado, Union \nCounty, Arkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to the  Motion  to  Dismiss filed by \nRespondents.    A  hearing  on  the Respondents’ motion for  dismissal was  conducted  on July  17, \n2024, in El Dorado, Arkansas.   \nThus, the sole issue for determination to be addressed at the hearing was whether this claim \nshould be dismissed due to the Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 \n(a)(4), §11-9-702 (d)  (Repl.  2012),  and/or Arkansas Workers’ Compensation  Commission Rule \n099.13. \n\nCALLOWAY – H204953 \n \n2 \n \n The record consists of the July 17, 2024, hearing transcript and the documentary evidence \nheld therein.  Specifically, admitted into evidence was Commission’s Exhibit 1, which consists of \nfive (5) pages; and Respondents’ Exhibit 1, comprising of pleadings, correspondence and forms \nrelated to this claim, consisting of fourteen numbered pages.   \n No testimony was taken at the hearing. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by   \nlaw.   \n        Discussion \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C with the Commission on July 6, 2022, \nasserting Claimant’s entitlement to Arkansas workers’ compensation benefits.  Per this document, \nthe Claimant’s attorney described the cause of injury as follows: “Claimant sustained injuries to \nmultiple body parts including not necessarily limited to his back, lumbar spine and thoracic spine \nincluding neuropathy.”  His accidental work-related injury occurred on June 17, 2022.  According \nto this document, the Claimant’s counsel checked off all the boxes for both initial and additional \nworkers’ compensation benefits.  Yet, at that time, there was no request for a hearing made by the \nClaimant’s attorney.       \nOn  or  about July  28, 2022, the  Respondents filed  a  Form  AR-2  with  the  Commission \naccepting liability for the Claimant’s back injury in this claim.  Specifically, per this document, \nthe claims adjuster stated that the first date that payment for indemnity benefits was triggered on \nJuly 7, 2022. \nThe  Claimant’s  former  attorney  requested  to  withdraw  as  counsel  of  record for  the \nClaimant in  this  matter  on September  15,  2023.    The  Full  Commission  entered  an  order  on \n\nCALLOWAY – H204953 \n \n3 \n \nSeptember 26, 2023, granting the Claimant’s attorney motion to withdraw from representing the \nClaimant in this workers’ compensation claim.   \n Still, the Claimant has not attempted to pursue or otherwise resolve his claim for workers’ \ncompensation benefits since the filing of the Form AR-C on July 6, 2022. \nOn February 1, 2024, the Respondents filed a Motion to Dismiss and Incorporated Brief in \nSupport which  was accompanied  by  a  certificate  of  service  to  the Claimant.    According  to  this \ncertification,  the  Respondents’ attorney served  a  copy  of  the aforementioned pleading  on  the \nClaimant by depositing a copy thereof in the United States Mail.   \nThe  Commission  sent  a  letter  advising  the  Claimant notifying  him of the Respondents’ \nmotion on May 9, 2024.  Said letter was sent via certified mail and first-class mail.  Per this letter, \nthe Claimant was given twenty (20) days from the date of the letter to file a written response to the \nmotion.  \nThe above letter  mailed  to  the  Claimant  by  first-class  mail  has  not  been  returned  to  the \nCommission.  However,  the  letter  mailed  to  the  Claimant  by  certified  mail  was  returned  to  the \nCommission marked as “Return to Sender – Unclaimed – Unable to Forward.”      \nStill, to date, there has been no response from the Claimant in this regard. \nOn February 15, 2024, the Respondents’ attorney requested that his dismissal request be \nheld  in  abeyance,  pending  the  resolution  of an  outstanding  issue  of  payment  for  the Claimant’s \npermanent partial disability benefits.  Said request for holding the motion for dismissal in abeyance \nwas granted.  However, on May 9, 2024, the Respondents’ attorney renewed his motion to dismiss.   \nTherefore, on May 30, 2024, the Commission sent a Notice of Hearing to the parties letting \nthem know that a hearing was scheduled on the Respondents’ motion to dismiss.  The hearing was \nset for Wednesday, July 17, 2024, in El Dorado, Arkansas.   \n\nCALLOWAY – H204953 \n \n4 \n \nSaid notice was mailed to the Claimant by way of certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \nshows they  were  unable  to deliver  this  item to  the  Claimant.  However,  the  letter  mailed  to  the \nClaimant via first-class mail has not been returned to the Commission.     \nStill, there has been no response from the Claimant.   \nHowever,  a hearing  was in  fact conducted on the Respondents’ motion  to dismiss as \nscheduled.  The Claimant failed to appear at the hearing to object to the claim being dismissed.  \nNevertheless, the Respondents’ attorney moved that the claim be dismissed under Ark. Code Ann. \n§11-9-702 (a)(4), §11-9-702 (d),  and Commission Rule  099.13 due to the Claimant’s failure to \nprosecute his claim.  Counsel for the Respondents also indicated that all appropriate benefits have \nbeen paid and the Claimant has returned to work for the respondent-employer. \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the \nmotion for dismissal of these claims due to a lack of prosecution are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n \n \n\nCALLOWAY – H204953 \n \n5 \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof this Commission and did not appear at the hearing to object to the dismissal.  Moreover, since \nthe  filing  of  the  Form  AR-C more  than  six  months  ago after  the  filing  of  the  claim,  which  was \ndone in July 2022, the Claimant has not requested a hearing.   \nConsidering all the foregoing, I am compelled to conclude that the Claimant has abandoned \nhis claim for workers’ compensation benefits.  \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to dismiss  this  claim is \nwarranted under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim within \nthe limitation period specified by law. \n                                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nCALLOWAY – H204953 \n \n6 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. Claimant’s former attorney filed a Form AR-C with the Commission in this \nmatter  asserting  the  Claimant’s entitlement to workers’  compensation \nbenefits due to an incident occurring at work on June 17, 2022. \n \n3. Subsequently, the Claimant’s attorney filed a motion to be relieved as \ncounsel of record, which was granted by the Full Commission.  \n \n4. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n5. The  Respondents  filed  a Motion to Dismiss and Incorporated  Brief in \nSupport with the Commission on February 1, 2024. \n \n6.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties. The   Claimant   has   failed   to   respond   to   the   notices   of   this \nCommission and did not appear at the hearing to object to his claim being \ndismissed.   \n \n7.        The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for a lack of prosecution is warranted.   \n \n8.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and  Rule 099.13 without \nprejudice, to the refiling of the claim within the specified limitation period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 (a)(4), §11-9-702 (d),  \nand Commission Rule 099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H204853 JUSTIN CALLOWAY, EMPLOYEE CLAIMANT CLEAN HARBORS ENVIRONMENTAL SERVICES, INC., EMPLOYER RESPONDENT INDEMITY INSURANCE COMPANY OF NORTH AMERICA (PA), INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRA...","fetched_at":"2026-05-19T22:51:51.856Z","links":{"html":"/opinions/alj-H204853-2024-07-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/CALLOWAY_JUSTIN_H204853_20240723.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}