{"id":"alj-H301176-2024-06-24","awcc_number":"H301176","decision_date":"2024-06-24","opinion_type":"alj","claimant_name":"Rosemary Cross","employer_name":null,"title":"CROSS VS. AR. HEART HOSPITAL, LLCAWCC# H301176June 25, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:3"],"injury_keywords":["knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Cross_Rosemary_H301176_20240624.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Cross_Rosemary_H301176_20240624.pdf","text_length":9042,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301176 \n \nROSEMARY CROSS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAR. HEART HOSPITAL, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED JUNE 25, 2024 \n \nHearing conducted on Wednesday, June 19, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Rosemary Cross, pro se, of Little Rock, Arkansas, did appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable Guy Alton Wade, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 19, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. However, Claimant was allowed to argue why her claim should not be dismissed. Claimant, \nwho according to Commission records, is pro se. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a dietary  aid. The  Claimant’s \nalleged injuries occurred on February 4, 2023. Admitted into evidence was Respondents Exhibit \n1, pleadings, and  correspondence,  consisting of 26 pages. I have  also blue-backed legal  advisor \nnote dated June 15, 2023, email from Melanie  Miller to Claimant dated April 9, 2024, certified \n\nCROSS, AWCC No. H301176 \n \n2 \n \nU.S.  Mail  return  receipt  dated  May  15,  2024,  Form  AR-1, Form  AR-2 and Form  AR-C, as \ndiscussed infra. \nThe  record  reflects on February 21,  2023,  a  Form AR-1 was  filed  with the  Commission \npurporting that Claimant was injured while throwing trash in the dumpster when the weight of the \ngarbage  pulled  her  into  the  dumpster  injuring  her  left  arm,  knee,  and  left  side  of  her  back on \nFebruary 4, 2023. The Claimant notified the Respondent/Employer of her injury on February 6, \n2023. Respondents filed a Form AR-2 on February 22, 2023, that contained no statement whether \nRespondents will controvert the claim. Claimant then filed a Form AR-C on February 28, 2023, \nreflecting more specifically that Claimant purportedly sustained injuries to her left leg, left knee, \nback, left ear, and head on February 4, 2023. Attorney Laura Beth York entered her appearance on \nbehalf of the Claimant on February 28, 2023. Attorney Guy Alton Wade entered his appearance \non March 31, 2023. On April 20, 2023, Attorney York filed a Motion to Withdraw as Counsel. \nThe motion was granted on May 2, 2023. \nThe Respondents’ counsel, Guy Wade, filed  a Motion to Dismiss on May 15,  2023, \nrequesting  this  claim  be  dismissed  for a lack  of  prosecution. The Claimant  was  sent a  certified \nnotice of the Motion to Dismiss to her last known address of record on May 23, 2023. The certified \nnotice was unclaimed.  Claimant, nevertheless, contacted Catherine Richards, a legal advisor for \nthe Commission, on June 15, 2023, and was informed of the Motion to Dismiss. Claimant stated \nthat she did not get the notice because she had moved to a new home. Claimant then provided her \nnew address to the legal  advisor. This information was  relayed to me, and  I held the Motion to \nDismiss in abeyance.  \nOn June 15, 2023, Claimant requested a change of physician from Dr. Scott Carle to Dr. \nBarry Baskin. Claimant’s request was approved on September 12, 2023. However, Respondents \n\nCROSS, AWCC No. H301176 \n \n3 \n \nrenewed their Motion to Dismiss on December 18, 2023, again claiming the lack of prosecution. \nThe Claimant was sent notice of this motion on December 27, 2023. Claimant received the certified \nnotice on December 29, 2023. The Claimant did not respond to the motion within twenty days. A \nhearing notice was sent out on the Motion to Dismiss for March 5, 2024. The Claimant appeared \nat  the  hearing  and  before  the  hearing started, stated  she  wanted  a  full  hearing.  The  Motion  to \nDismiss  hearing  was  cancelled  and  Claimant  was  physically  handed  Respondents’ discovery \nrequest  with  the  understanding  that  it  is  to  be  answered  in  30  days.  The  Claimant  had failed  to \nanswer Respondents’ discovery or produce the pre-hearing questionnaires sent to her by my office.   \nThe Claimant was notified, via email dated April 9, 2024, that she has not returned the pre-\nhearing questionnaire to my office nor submitted Respondents’ discovery request within the 30 \ndays. The Claimant was warned in the same email that if she doesn’t comply by twelve noon, April \n12, 2024, another Motion to Dismiss hearing would be set. Claimant failed to answer discovery or \nreturn any pre-hearing documents. Thus again, in accordance with applicable Arkansas law, the \nClaimant was mailed due and proper legal notice of the Respondents’ Motion to Dismiss hearing \ndate at  her current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified Mail, Return Receipt Requested, and regular First-Class Mail. The certified notice was \nclaimed by Claimant on May 15, 2024. The hearing took place on June 19, 2024. As mentioned \nbefore, the Claimant did show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n\nCROSS, AWCC No. H301176 \n \n4 \n \n2. The Claimant and Respondents both had reasonable notice of the June 19, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. The  Claimant  was  there  to  defend \nagainst  the  dismissal  motion.  Claimant argued  that she didn’t prosecute her claim because she \ndidn’t have a lawyer to help her understand the pre-hearing and discovery documents. I don’t credit \nthis argument. Claimant was advised months ago that she has the right to hire an attorney or speak \nto a legal advisor for free to help with her claim. Claimant’s contact with the legal advisor when \nthe first Motion to Dismiss was filed and proved successful in getting the motion held in abeyance. \nThere is no reason why Claimant should not feel the use of the free legal advisor would not serve \nher interest in completing her documents. Claimant next argued that people at her job were getting \nlaid off work and she was afraid that if she pursued her claim she would be fired. I also don’t credit \nthis  argument  because  she provided  no  bases  for  this  belief.  She  could  have  contacted  a  legal \nadvisor and explained her fear of retaliation. But instead, she chose to do nothing.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nFebruary 28, 2023, and since then has taken no real action in furtherance of this claim. Claimant’s \nactions do not show she was eager to prosecute her claim despite asking for a full hearing. Claimant \nwas accorded multiple opportunities to prosecute her claim but refused to do so. The Claimant has \n\nCROSS, AWCC No. H301176 \n \n5 \n \nfailed  to  provide the pre-hearing  questionnaire  and participate  in discovery. In  this  regard,  the \nClaimant has failed to do the bare minimum in prosecuting her claim. Therefore, I do find by the \npreponderance  of  the  evidence  that  Claimant  has  failed  to  prosecute  her claim. And  as  a  result, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301176 ROSEMARY CROSS, EMPLOYEE CLAIMANT AR. HEART HOSPITAL, LLC, EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED JUNE 25, 2024 Hearing conducted on Wednesday, June 19, 2024, before ...","fetched_at":"2026-05-19T22:53:09.320Z","links":{"html":"/opinions/alj-H301176-2024-06-24","pdf":"https://labor.arkansas.gov/wp-content/uploads/Cross_Rosemary_H301176_20240624.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}