{"id":"alj-H301142-2023-10-04","awcc_number":"H301142","decision_date":"2023-10-04","opinion_type":"alj","claimant_name":"Eden Ballew","employer_name":"Natural Relief Dispensary","title":"BALLEW VS. NATURAL RELIEF DISPENSARY AWCC# H301142 OCTOBER 4, 2023","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BALLEW_EDEN_H301142_20231004.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BALLEW_EDEN_H301142_20231004.pdf","text_length":8448,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H301142 \n \n \nEDEN BALLEW, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nNATURAL RELIEF DISPENSARY,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nBENCHMARK INSURANCE COMPANY, \nINSURANCE COMPANY                                                                                      RESPONDENT  \n \nGRAND RIVER SERVICES, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED OCTOBER 4, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, did not attend the hearing.  \n \nRespondents  represented  by  the  Honorable  Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on  September  20,  2023  in  the  present  matter  pursuant  to  Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof  whether  the  above-referenced  case  should  be  dismissed  for  failure  to  prosecute  under  the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012) and/or Arkansas Workers’ Compensation \nCommission Rule 099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the September 20, 2023, hearing and the documents \nretained  therein.  The  entire Commission’s file was  also  made  a  part  of  the  record.    It  is  hereby \n\nBallew – H301142 \n \n2 \n \nincorporated  into  the  hearing  transcript  by  reference.    Moreover,  the  Respondents  offered  one   \nexhibit into evidence, consisting of five pages.  It has been marked as Respondents’ Exhibit 1.   \nProcedural History \n On  February  20,  2023,  the  Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits by way of a Form AR-C.  The Claimant asserted that she sustained \ncompensable  injuries  on  January  14,  2022,  while  performing  her  employment  duties  for  the \nrespondent-employer.  She asked for both initial and additional workers’ compensation benefits.  \nIn fact, the Claimant checked all the boxes for every benefit allowed under the law in connection \nwith this claim.  Per the Form AR-C, the Claimant’s accidental injury occurred as follows: “After \nfainting  and  losing  consciousness  at  work,  I  was  transported  to  a  local  hospital  ER  for  medical \nattention to be examined for injury.  I received a diagnosis of syncope and received medications \nfor it.”  \n The claims adjuster filed a  Form AR-2  with the  Commission on  February 28, 2023.  At \nthat time, the carrier denied the claim.  Per this document, the adjuster’s statement of position for \ncontroverting the claim included the following grounds: “Claim has been denied.  The Claimant \nwas standing at a meeting when she passed out due to an idiopathic condition.  She was caught by \nanother employee and lowered to the ground.”     \n Subsequently, there was no action taken by the Claimant to resolve her claim, and nor did \nshe request a hearing.   \nTherefore, the Respondents filed a Respondents’ Motion to Dismiss with the Commission \non  August  1,  2023.   The Respondents’  motion  for  dismissal  included  a  certificate  of  service   \nconfirming that they provided a copy of the above pleading to the Claimant by mailing a copy of \nit to her.  \n\nBallew – H301142 \n \n3 \n \nOn  August  2,  2023,  the  Commission  sent  a  letter-notice to  the Claimant’s last  known \naddress  via  first-class  and  certified  mail.  Per  this  correspondence,  the  Commission  gave  the \nClaimant a deadline of twenty days, for filing a written response to the Respondents’ motion. \nThere was no response from the Claimant.  However, information received from the United \nStates Postal Service shows that the notice was delivered to the Claimant’s residence and left with \nan individual on August 4, 2023.  The return receipt bears the Claimant’s signature.     \nYet, there was no response from the Claimant.  \nTherefore, pursuant to a Notice of Hearing mailed on August 22, 2023, the Commission \nnotified the parties that a hearing had been scheduled in this matter to address the Respondents’ \nmotion for dismissal of this claim for failure to prosecute it.  The notice was mailed to the Claimant \nvia  first-class  and  certified  mail.    Said  hearing  was  scheduled  for  September  20,  2023,  at  the \nCommission in Little Rock.  \nThe hearing notice that the Commission  sent to the Claimant via first-class mail has not \nbeen  returned  to  the  Commission.    However,  the  copy  of  the  notice  sent  via  certified  mail  was \nreturned to the Commission marked “Return to Sender ‘Unclaimed’ Unable to Forward.”  Based \non the foregoing, I am convinced the Claimant received proper notice of the dismissal hearing.        \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nof  this  claim  due  to  a  lack  of  prosecution  as  scheduled.  Yet,  the  Claimant  did  not  attend  the \nhearing.  However, the Respondents appeared through their attorney.   \nThe Respondents’ attorney noted that it has been more than six months since the filing of \nthe  Form  AR-C,  but  the  Claimant  has  not  requested  a  hearing.    Therefore,  counsel  essentially \nmoved  that  pursuant  to  Ark.  Code  Ann.  §11-9-702  and/or  Rule  099.13  the  claim  be  dismissed \nwithout prejudice for failure to prosecute it. \n\nBallew – H301142 \n \n4 \n \n        Discussion \nThe Claimant has not requested a hearing since the filing of the Form AR-C in February \n2023.  Hence, more than six months have passed since the filing of this claim for compensation \nand no bona fide request for a hearing has been  made  with respect to it.  The record before me \nproves  that  the  Claimant  has  failed  to  promptly  prosecute  her claim for workers’ compensation \nbenefits.  More importantly, the Claimant did not appear at the hearing to object to her claim being \ndismissed.    Hence,  the  evidence  before  me  preponderates  that  the  Claimant  has  abandoned  her \nclaim for workers’ compensation benefits.  \nTherefore, pursuant to Ark. Code Ann. §11-9-702 and Rule 099.13, I find that this claim \nshould be and is hereby respectfully dismissed, without prejudice, to the refiling of it within the \nlimitation period specified by law.   \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. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution of it by the Claimant, for which a hearing \nwas held. \n \n3. The Claimant has not requested a hearing since the filing of her Form AR-\nC  in  February  2023,  which  was  more  than  six  months  ago.  Hence,  the \nevidence preponderates that the Claimant has failed to prosecute her claim \nfor workers’ compensation benefits.      \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion for dismissal of this claim for failure to prosecute \nit is hereby granted, without prejudice, per Arkansas Code Ann. §11-9-702 \n\nBallew – H301142 \n \n5 \n \nand Rule 099.13, to the refiling of it within the limitation period specified \nby law.  \n \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \ndismissed per Arkansas Code Ann. §11-9-702 and Rule 099.13, without prejudice, to the refiling \nof it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H301142 EDEN BALLEW, EMPLOYEE CLAIMANT NATURAL RELIEF DISPENSARY, EMPLOYER RESPONDENT BENCHMARK INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT GRAND RIVER SERVICES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 4, 2023 Hearing held before Adm...","fetched_at":"2026-05-19T23:01:13.789Z","links":{"html":"/opinions/alj-H301142-2023-10-04","pdf":"https://labor.arkansas.gov/wp-content/uploads//BALLEW_EDEN_H301142_20231004.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}