{"id":"alj-H304848-2024-07-19","awcc_number":"H304848","decision_date":"2024-07-19","opinion_type":"alj","claimant_name":"Michael Loosier","employer_name":"City Of Ashdown","title":"LOOSIER VS. CITY OF ASHDOWN AWCC# H304848 July 19, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/LOOSIER_MICHAEL_H304848_20240719.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOOSIER_MICHAEL_H304848_20240719.pdf","text_length":11970,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H304848 \n \nMICHAEL LOOSIER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nCITY OF ASHDOWN,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nMUNICIPAL LEAGUE WORKERS’ COMPENSATION \nPROGRAM, THIRD PARTY ADMINISTRATOR/TPA                                       RESPONDENT                                                                        \n \nOPINION FILED JULY 19, 2024   \n \nHearing before  Administrative Law Judge Chandra  L.  Black, in Texarkana, Miller County, \nArkansas. \n \nThe Claimant, pro se, failed to appear at the hearing.        \n \nRespondents represented by the Honorable Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n              STATEMENT OF THE CASE      \n \n A  hearing  was  held  on July 9,  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 matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \n The record consists of the transcript of the July 9, 2024, hearing and the documents held \ntherein. Additionally,  in  order  to  adequately  address  this  matter  under  Ark.  Code  Ann.  §  11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed correspondence \nfrom the Commission’s file on the claim, consisting of one page.  In accordance with Sapp v. Tyson \n\nLOOISER-H304848 \n \n2 \n \nFoods, Inc., 2010 Ark. App. 517, ___ S.W.3d ___, this document has been served on the parties \nin  conjunction  with this opinion.   Specifically,  the  documentation  consists  of  an  email that the \nCommission sent to the  United States Postal Service regarding tracking information on the notices \nsent  to  the  Claimant  via  certified  mail, comprising of one page,  which has  been  marked  as \nCommission’s Exhibit 1\n1\n; and the Respondents’ Non-Medical Exhibit Index has  been  marked \naccordingly,  and  it includes ten (10) pages of pleadings, the  Form  AR-C, and various other \ncorrespondence.   \n No testimony was taken. \n                                                            Procedural History \n On October  12, 2023, the Claimant’s attorney filed  a  Form  AR-C  with  the  Commission \nalleging that the Claimant sustained a compensable injury to his back during the course and in the \nscope of his employment with the respondent-employer on July 19, 2023.  Specifically, per this \ndocument, the  Claimant requested benefits  in  the  form  of additional temporary  total  disability, \nadditional temporary partial disability, additional permanent partial, additional medical expenses, \nrehabilitation, and an attorney’s fee.  \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on August 9, \n2023, wherein they accepted compensability of the claim for an injury to the Claimant’s lumbar \nspine.   \nOn  October  20,  2023,  the  claims  examiner  wrote  to  the  Commission saying,  in  relevant \npart: “... This claim was accepted.  The First Report of Injury and Form AR-2 were previously \nfiled with your office.  Our position has not changed.  Please advise if additional information is \nrequired.”  \n \n1\n This email has been blue-backed and made a part of the record of the transcript for the July 9, hearing. \n\nLOOISER-H304848 \n \n3 \n \nThe  Claimant’s  attorney  filed  with  the  Commission  a  motion  to  withdraw  from \nrepresenting  the  Claimant  in  this  matter  on  October  18,  2023.    There  being  no  objection  to  the \nmotion for the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered \nan Order on November 2, 2023, granting the motion.      \nSince the filing of the Form AR-C, there has been no affirmative action taken on the part \nof the Claimant to prosecute his claim for workers’ compensation benefit, or otherwise pursue any \ntype of benefits.  In fact, the Claimant has not ever filed a request for a hearing in this matter.  \nTherefore,  on or  about April  22,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss for Failure to Prosecute, with the Commission, along with a Certificate of Service to the \nClaimant.  Per this documentation, the Respondents confirmed that they served upon the Claimant \na true and correct copy of the above and foregoing pleading, which was sent to the Claimant by \nway  of certified mail,  return  receipt  requested on  that  same  day, via the United  States  Postal \nService.  The Respondents received tracking documentation of the delivery information from the \nPostal Service that shows the Claimant received a copy of the Motion to Dismiss.         \n  The  Commission  sent  a letter to  the Claimant on April  22,  2024, informing him of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  This notice \nwas sent via first-class and certified mail by way of the Postal Service.   \nInformation received by the Commission from the Postal Service on July 8, 2024, shows \nno proof of delivery for the recipient of this parcel of mail.  However, the letter notice sent to the \nClaimant by first-class mail has not been returned to the Commission.  \nYet, there was no response from the Claimant.   \n  Pursuant to a Hearing Notice dated May 15, 2024, the Commission notified the parties that \nthis matter had been set for a hearing on the Respondents’ motion to dismiss. Said hearing was \n\nLOOISER-H304848 \n \n4 \n \nscheduled for July 9, 2024, at 10:00 a.m., at the Miller County Juvenile Court Center, in Texarkana, \nArkansas.  This notice of the dismissal proceedings was sent to the Claimant via first-class and \ncertified mail via the Postal Service.   \nInformation received by the Commission from the Postal Service on July 8, 2024, shows \nthat there was no proof of delivery for the recipient of the notice of hearing.  However, the notice \nof hearing sent to the Claimant by first-class mail has not been returned to the Commission.  Based \non the foregoing, I find that the evidence before me preponderates that the Claimant received notice \nof the dismissal hearing.   \nStill, there was no response from the Claimant.     \nNevertheless,  a dismissal hearing  was  in  fact  conducted  on the  Respondents’ motion as \nscheduled.    The Claimant did  not appear at the hearing.    However, the  Respondents appeared \nthrough  their  attorney.  The  Respondents’  attorney asserted  that  the Claimant  has  failed  to \nprosecute his claim for workers’ compensation benefits and that it should be dismissed for want \nof prosecution.  Counsel further noted that the Claimant has not asked for a hearing since the filing \nof the Form AR-C, which was done more than six (6) months ago.  Therefore, the Respondents’ \nattorney essentially moved that this claim be dismissed without prejudice based on the timing of \nthe events described above and the procedural history of the claim involving a lack of prosecution \nper Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13. \n                                          Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for dismissal of this claim are outlined below:  \nSpecifically, 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 \n\nLOOISER-H304848 \n \n5 \n \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 \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 had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \never requested a hearing or otherwise tried to prosecute his claim for benefits since the filing of \nthe Form AR-C, which was done more than six (6) months ago.  Most notably, the Claimant has \nnot responded to the Notices of this Commission, nor has he contested the dismissal request, and \nhe did not appear at the hearing to object to his claim being dismissed.           \nTherefore, after consideration of the evidence before me, I find the Respondents’ Motion \nto  Dismiss to  be  well  taken.  Accordingly, pursuant  to  Ark. Code  Ann. §11-9-702 (d), and \nCommission  Rule  099.13,  this  claim for workers’ compensation benefits is  hereby dismissed \nwithout  prejudice to  the  refiling of  it within  the limitation  period specified by the  applicable \nlimitation period. \n \n \n\nLOOISER-H304848 \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. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion to dismiss this claim, \nfor want of prosecution for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC,  which  was done more  than  six  (6)  months  ago.    Hence,  the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his  claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann. §11-9-702 (d),  and  Rule  099.13  of  this \nCommission.       \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 want of prosecution \nis hereby granted, without prejudice, under Ark. Code Ann. §11-9-702 (d), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \n                                         ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for additional benefits.  This dismissal is hereby ordered pursuant to Ark. \nCode Ann. §11-9-702 (d), and Commission Rule 099.13, without prejudice to the refiling of this \nclaim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n    \n                    \n____________________________________ \nChandra L. Black \n       Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H304848 MICHAEL LOOSIER, EMPLOYEE CLAIMANT CITY OF ASHDOWN, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, THIRD PARTY ADMINISTRATOR/TPA RESPONDENT OPINION FILED JULY 19, 2024 Hearing before Administrative Law Judge Chandra L. Black, i...","fetched_at":"2026-05-19T22:51:39.275Z","links":{"html":"/opinions/alj-H304848-2024-07-19","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/LOOSIER_MICHAEL_H304848_20240719.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}