{"id":"alj-H303449-2025-01-24","awcc_number":"H303449","decision_date":"2025-01-24","opinion_type":"alj","claimant_name":"Don Mallory","employer_name":"United Parcel Service/ups, Inc","title":"MALLORY VS. UNITED PARCEL SERVICE/UPS, INC. AWCC# H303449 January 24, 2025","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MALLORY_DON_H303499_20250124.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MALLORY_DON_H303499_20250124.pdf","text_length":12563,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H303449 \n \n \nDON D. MALLORY, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nUNITED PARCEL SERVICE/UPS, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nLM INSURANCE CORPORATION, \nCARRIER                                                                                                                RESPONDENT  \n          \n \nOPINION FILED JANUARY 24, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, failed to appear for the dismissal hearing.         \n \nRespondents represented  by the  Honorable David  C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                      Statement of the Case      \n \n A hearing was held on January 15, 2025, in the above-referenced matter pursuant to Dillard \nv. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine \nwhether this case should be dismissed for failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of January 15, 2025, hearing and the documents held \ntherein.  Commission’s Exhibit 1 consists of three (3) pages, which has been marked accordingly; \n\nMALLORY – H303499 \n \n2 \n \nand the Respondents introduced into evidence an exhibit consisting of forty-nine (49) pages, and \nit was thus marked Respondents’ Exhibit 1.     \n                                                               Procedural History \n The Claimant  alleged  that  he  sustained  a  compensable  injury  while  working  for United \nParcel Service/UPS during and in the course of his employment on May 24, 2023.  Although the \nClaimant reported an injury to his employer, he did not file a Form AR-C with the Commission \non this alleged workers’ compensation claim.  However, the evidence before me shows that the \nClaimant reported having sustained multiple gunshot wounds as the result of a possible robbery or \ncriminal assault while returning to his package car following his lunch break.  No further details \nsurrounding this incident were provided.            \n  The Respondents’ claims specialist filed a Form AR-2, with the Commission on June 28, \n2023.  At that time, the respondent-carrier’s stated position was that this claim was pending further \ninvestigation.  Therefore, the claims specialist asked that the Commission’s Compliance Division \ngrant her thirty (30) days to investigate the claim.  This request was granted, and the carrier was \ngiven until June 29, 2023, to file a Form AR-2 regarding their position.   \nOn  June  28,  2023,  the  claims  specialist  filed a Form  AR-2 with  the  Commission \ncontroverting this claim pending further investigation.   \nIt appears that the Claimant retained legal counsel in this matter.  However, on August 22, \n2023, the Claimant’s attorney notified the Commission that her law firm no longer represented the \nClaimant in his claim for workers compensation benefits.   \nSubsequently,  on  September  18,  2023,  the  Claimant  wrote the  following  letter  to  the \nCommission.   “I am requesting a hearing for Workers[sic] Comp [sic] denial.” On  October  25, \n2023,  this claim  was  assigned  to  the Commission’s Legal  Advisors Division  for a voluntary \n\nMALLORY – H303499 \n \n3 \n \nmediation  conference.  An  attorney  from  the Legal Advisors Division returned  the  case to  the \nCommission’s general file because attempts to set up a mediation conference failed.     \n  Afterward, there was no action whatsoever taken on the part of the Claimant to prosecute \nhis claim or pursue benefits. \nTherefore, on November 12, 2024, the Respondents filed a Motion to Dismiss and Brief in \nSupport of the Motion Dismiss, with the Commission, along with a Certificate of Service to the \nClaimant via the United States Postal Service.      \nThe Commission sent a Notice to the Claimant on November 14, 2024, informing him of \nthe Respondents’ motion to  dismiss,  and  a  deadline of  twenty  (20)  days  for  filing  a  written \nresponse.  This  letter  was  sent  via  first-class  and  certified  mail.   Information  received  by  the \nCommission from the United States Postal Service verifies that they were also unable to find any \ndelivery information on this item in their records.   However, the notice sent by first-class mail has \nnot been returned to the Commission.   \n Pursuant to a Hearing Notice dated December 3, 2024, the Commission notified the parties \nthat this claim had been set for a hearing on the Respondents’ motion to dismiss.  Said dismissal \nhearing  was  scheduled for January 15,  2024\n1\n at 9:30 a.m., with  the  hearing  being  held  at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas.  This notice was sent \nvia first-class mail and certified mail. \nInformation  received  from  the  Postal  Service  shows  that  this  item  was  delivered  to  the \nClaimant’s residence, and he signed for the Hearing Notice on December 6, 2024.  The Recipient’s \nSignature section bears the Claimant’s printed name, along  with  his  signature.   Moreover, the \n \n1\n There is a clerical error on the Hearing Notice.  It states the incorrect year of 2024.  Instead, the notice \nshould read that the dismissal hearing was scheduled for Janauy 15, 2025.    \n\nMALLORY – H303499 \n \n4 \n \nnotice sent via first-class mail has not been returned to the Commission.  Based on the foregoing, \nthe evidence preponderates that the Claimant received notice of the dismissal hearing.      \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.   \nThe Respondents’ counsel essentially noted that the Claimant has failed to timely prosecute \nhis claim  for  workers’  compensation  benefits.  As  such, Counsel moved that  this  claim  be \ndismissed with or  without prejudice under Ark. Code  Ann. §11-9-702(a)(4)  and  (d)  and \nCommission Rule 099.13.  The Respondents’ attorney also stated that the Claimant has returned \nto  work  for  UPS.    Per  counsel,  the  claim  was  denied  because  the  Claimant’s injuries were  not \nincurred  during  and in  the  course  and  scope  of  his  employment with  UPS; and that the \ncircumstances surrounding his May 24, 2023, assault resulted due to personal reasons unrelated to \nhis employment duties. \nNevertheless,  in  the  present  matter, no  Form  AR-C  has ever been  filed  in  this  case.  \nTypically,  a  Form  AR-C is  the  means  for  filing  a  “formal  claim” for Arkansas workers’ \ncompensation benefits.  I am cognizant that other means exist to file a claim for Arkansas workers’ \ncompensation benefits other than a Form AR-C.  Hence, the Respondents have asserted that there \nexists a document of record that would constitute the filing of a claim in this matter.   \nSimilarly, the Respondents’ attorney noted that although the Claimant did not file a formal \nForm AR-C, he wrote a letter to the Commission regarding his claim being controverted by the \nRespondents and requested a hearing pursuant to the denial.  The Respondents’ counsel contended \nthat the Claimant’s September 18, 2023, letter to the Commission meets the requirements under \ncase law for the filing of a claim for initial workers’ compensation benefits.  I am persuaded that \n\nMALLORY – H303499 \n \n5 \n \nsaid letter clearly proves that the Claimant filed a claim for initial benefits, for which he requested \na hearing.            \nDecision  \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \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 limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nFurthermore, Commission 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 \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of his letter claim more than six (6) months ago; and nor has he resisted \nthe motion for dismissal of his workers’ compensation claim despite having received notice of the \nhearing.   \n\nMALLORY – H303499 \n \n6 \n \nHere,  the  evidence  preponderates  that  the  Claimant  has clearly failed  to  prosecute  this \nclaim for initial workers’ compensation benefits.  Furthermore, I am convinced that the Claimant \nhas abandoned his claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702,  and Commission  Rule  099.13,  this  claim  for initial workers’  compensation \nbenefits is hereby respectfully dismissed without prejudice to the refiling of it within the limitation \nperiod specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on 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, for which a hearing was held. \n \n3. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13, to the refiling of it within the limitation period specified by law.  \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code \nAnn. §11-9-702, and Commission Rule 099.13, without prejudice to the refiling of this claim  \n \n\nMALLORY – H303499 \n \n7 \n \nwithin the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n        ______________________________ \n                                                                                                CHANDRA L. BLACK \n                                                                                                Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H303449 DON D. MALLORY, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE/UPS, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, CARRIER RESPONDENT OPINION FILED JANUARY 24, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulask...","fetched_at":"2026-05-19T22:44:45.012Z","links":{"html":"/opinions/alj-H303449-2025-01-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MALLORY_DON_H303499_20250124.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}