{"id":"alj-H304038-2024-06-21","awcc_number":"H304038","decision_date":"2024-06-21","opinion_type":"alj","claimant_name":"Michael Nepote","employer_name":null,"title":"NEPOTE VS. HARPS FOOD STORES, INC.AWCC# H304038 & H302541June 21, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["neck","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/NEPOTE_MICHAEL_H304038_H302541_20240621.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEPOTE_MICHAEL_H304038_H302541_20240621.pdf","text_length":11901,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NOS.: H304038 & H302541 \n \n \nMICHAEL NEPOTE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nHARPS FOOD STORES, INC., SELF-INSURED   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nHARPS FOOD STORE, INC., CCMSI,  \nINSURANCE CARRIER /THIRD                                                                                         \nPARTY ADMINISTRATOR                                                                                  RESPONDENT  \n                                                                     \n                       \nOPINION FILED JUNE 21, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Litte Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, failed to appear at the hearing.  \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 24, 2024 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 claims should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner set by law.   \nThe  record  consists  of  the  transcript  of  the April  24, 2024, hearing  and  the  documents \ncontained therein.  Specifically, Commission’s Exhibit 1 consists of twenty-nine (29) numbered \n\nNEPOTE – H304038 & H302541  \n \n2 \n \npages; and the Respondents’ Hearing Exhibit covering twelve (12) totaled pages was marked as \nRespondents’ Exhibit 1.     \n                                                                  Discussion \n On June 26, 2023, the Claimant’s former attorney filed with the Commission two claims \nfor Arkansas workers’ compensation benefits on behalf of the Claimant by way of a separate Form \nAR-C for each claim.  The Claimant’s first alleged work-related injury occurred on May 13, 2022, \nand that is for AWCC Claim No. H304038.  Specifically, per this document, the Claimant alleged \nhe injured his neck, left  shoulder, left elbow, neck and other  whole body  during the course and \nscope of his employment with the respondent-employer.  In fact, the Claimant’s attorney marked \nall the boxes for every conceivable benefit under the law in connection with this claim.  On that \nsame date, the Claimant’s attorney filed another claim  for  benefits which  is AWCC  Claim  No. \nH302541.    Per  this  documentation,  the  Claimant alleged injuries  to identical  body  parts in  the \nearlier  Form  AR-C.  However,  the date  of  the  alleged  accident for  this  claim is September  15, \n2022.  Similarly, Claimant’s attorney marked off  all  the  boxes  for  both initial  and additional \nworkers’ compensation benefits for this most recent claim.   \n The  respondent-insurance  carrier  filed  a  Form  AR-2 with  the  Commission  on  May  16, \n2023, accepting the September 15, 2022, accident injury as a compensable claim.  The evidence \nshows that the Respondents have paid some benefits on this claim.  Additionally, on July 14, 2023, \nthe  Respondents  filed  another Form  AR-2  with  the  Commission  accepting  the May  13, 2022, \nwork-related accident as a compensable left shoulder injury, but as a “medical only” claim.   \n  Subsequently, on January 29, 2024, the Claimant’s attorney filed with the Commission a \nmotion to withdraw as counsel of record in both claims. The Full Commission entered an order on \n\nNEPOTE – H304038 & H302541  \n \n3 \n \nMarch  5,  2024, granting the Claimant’s attorney motion  to  withdraw from  representing  him in \nboth of these claims.   \n Since this time, there has been no bona fide action on the part of the Claimant to prosecute \nhis claims for workers’ compensation benefits, or otherwise pursue a resolution in this matter.   \nAs a result, on March 12, 2024, the Respondents filed with the Commission a Motion to \nDismiss for Failure  to  Prosecute  these  claims.    The  Respondents  notified  the Claimant of their \nmotion  for dismissal  by way  of depositing a  copy of  the  foregoing  pleading in the mail via the \nUnited States Postal Service.  \nThe Commission mailed a letter-notice to the Claimant to his last known address, on March \n13, 2024.  Said letter was sent by first-class mail and certified mail.  Per this correspondence, the \nClaimant was given a deadline of twenty (20) days for filing a written response to the Respondents’ \nmotion. \nHowever, the United States Postal Service informed the Commission on March 14, 2024, \nthat  they delivered this item to the Claimant’s residence and left it with an individual.  Per  the \nproof  of  delivery information concerning  this  item  received  by  the  Commission  from  the  Post \nOffice, the Claimant accepted delivery of this parcel of mail.  However, only the Claimant’s last \nname is legibly printed on this document.   \nYet, there has been no response from the Claimant.   \nTherefore, pursuant to a Hearing Notice dated March 27, 2024, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss these claims \ndue to a lack of prosecution.  The Commission mailed the notice of hearing to the Claimant via \ncertified and first-class mail.  Said hearing was scheduled for April 24, 2024, at 11:00 a.m., at the \nArkansas Workers’ Compensation Commission’s locale in Little Rock, Arkansas. \n\nNEPOTE – H304038 & H302541  \n \n4 \n \nThe hearing notice sent to the Claimant via certified mail was delivered to the Claimant’s \nhome  and  left  with  an  individual  on  March  29,  2024.    Tracking  information  received  by  the \nCommission from the Post Office shows that the signature of the recipient of this parcel of mail is \nunknown  because  it  is scribbled.  Conversely,  the  notice  sent  by  first  class  mail  has  not  been \nreturned to the Commission.  \nStill, there has been no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nThe Respondents’ counsel noted that the Claimant has failed to promptly prosecute these \nclaims for additional workers’ compensation benefits.  Counsel further noted that the Claimant did \nnot respond  to any  of  the  correspondence from this  Commission,  and  he did  not appear  at  the \nhearing to object to his claims being dismissed.  The Respondents’ attorney indicated that the \nClaimant has clearly illustrated an unwillingness or a lack of a desire to prosecute these claims. \nTherefore, counsel moved that these claims be dismissed under Ark. Code Ann. §11-9-702, and \nArkansas Workers’ Compensation Commission Rule 099.13, without prejudice due to all the afore \nreasons. \n                         Adjudication \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:  \n Specifically, 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 \n\nNEPOTE – H304038 & H302541  \n \n5 \n \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \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 \n \nMy review of the evidence shows that the Claimant has had ample time to pursue his claims \nfor additional workers’ compensation benefits, but he has failed to do so.  Specifically,  the \nClaimant has not requested a hearing or otherwise taken any affirmative action to prosecute his \nclaims since  the  filing  of  the  Form  AR-Cs in  June  2023.    Most  notably,  the  Claimant  has  not \nresponded to the Notices of this Commission, nor has he contested the dismissal request or objected \nto his claims being dismissed.  Under these circumstances, I am compelled to find that the evidence \npreponderates that the Claimant has abandoned claims for workers’ compensation benefits.   \nAfter consideration of the evidence before me, I find the Respondents’ Motion to Dismiss \nfor Failure to Prosecute to be well founded.  Accordingly, pursuant to Ark. Code Ann. §11-9-702 \n(d), and Commission Rule 099.13, these claims for additional workers’ compensation benefits are \nhereby dismissed without prejudice to the refiling of each claim per the limitation period specified \nwithin the applicable limitation period.  \n \n\nNEPOTE – H304038 & H302541  \n \n6 \n \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 these \nclaims due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not requested a hearing on these claims since the filing of \nthe  Form  AR-Cs on  June  26,  2023, which  was done almost  a  year  ago. \nHence, the evidence preponderates that the Claimant has failed to prosecute \nhis claims for additional workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss these claims for a lack of prosecution \nis hereby granted, without prejudice, pursuant to Ark. Code Ann. §11-9-702 \n(d), and Commission Rule 099.13, to the refiling of each claim within the \nlimitation period specified by law.  \n \nORDER \nIn accordance with the findings of fact and conclusions of law set forth above, these claims \nare hereby   dismissed   pursuant to Ark. Code   Ann. §11-9-702, and Arkansas Workers’ \nCompensation  Commission  Rule 099.13, without  prejudice, to  the  refiling  of them, within the \nlimitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS.: H304038 & H302541 MICHAEL NEPOTE, EMPLOYEE CLAIMANT HARPS FOOD STORES, INC., SELF-INSURED EMPLOYER RESPONDENT HARPS FOOD STORE, INC., CCMSI, INSURANCE CARRIER /THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 21, 2024 Hearing held before Administra...","fetched_at":"2026-05-19T22:53:05.188Z","links":{"html":"/opinions/alj-H304038-2024-06-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/NEPOTE_MICHAEL_H304038_H302541_20240621.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}