{"id":"alj-H305052-2024-04-17","awcc_number":"H305052","decision_date":"2024-04-17","opinion_type":"alj","claimant_name":"Barbara Mcgraw","employer_name":null,"title":"McGRAW VS. LONOKE MIDDLE SCHOOLAWCC# H305052 APRIL 17, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MCGRAW_BARBARA_H305052_20240417.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCGRAW_BARBARA_H305052_20240417.pdf","text_length":8875,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H305052 \n \n \nBARBARA McGRAW, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nLONOKE MIDDLE SCHOOL,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA                                                                                RESPONDENT  \n                       \n \nOPINION FILED APRIL 17, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Pulaski County, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.  \n \nThe Respondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 17, 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 (Repl.  2012), and Arkansas Workers’ Compensation Commission  Rule \n099.13.  No testimony was taken at the hearing.   \n The record consists of the transcript of the April 17, 2024, hearing and the documents held \ntherein.  Admitted into evidence was Commission’s Exhibit 1 consisting of thirteen pages, which \nwas marked accordingly, and the Respondents’ Hearing Exhibit consisting of thirteen numbered \npages was marked as Respondents’ Exhibit 1.   \n \n \n\nMcGRAW – H305052 \n \n2 \n \n                                                           Background \n On October  13,  2023, the Claimant’s attorney filed with  the Commission a claim for \nArkansas workers’ compensation benefits by  way  of  a Form  AR-C.   Per  this  document,  the \nClaimant alleged that she sustained injuries to her left arm, left shoulder and other whole body, \nduring  and  in  the  course  and  scope  of  her the  respondent-employer,  on  August 7,  2023.   The \nClaimant’s attorney requested both initial and additional workers’ compensation benefits.  In fact, \nthe attorney checked  all  the  boxes  for  every  conceivable  benefit available  under  the  law in \nconnection with this claim. \n On August 9, 2023, the Respondents filed a Form AR-2 with the Commission to controvert \nthis claim.  Specifically, the Respondents’ grounds for controverting the claim were: “DENIED – \ndid not occur with the course and scope of employment.”  \n Since the  filing  of  the  Form  AR-C, there has  been no  request  for  a  hearing  filed by  the \nClaimant in this matter.   \n The  Claimant’s  attorney filed  with  the  Commission  a  Motion  to  Withdraw from \nrepresenting the Claimant in this matter on January 17, 2024.  The Full Commission entered an \norder granting the Claimant’s attorney motion to withdraw from representing her in this matter on \nFebruary 8, 2024.  The Claimant filed a letter with the Commission on February 14, 2024, saying \nthat she does not object to her attorney withdrawing from the claim.  \n Since this time, there has been no bona fide action whatsoever on the part of the Claimant \nto prosecute her claim for workers’ compensation benefits, or otherwise pursue a resolution in this \nmatter.   \n\nMcGRAW – H305052 \n \n3 \n \nAs  a  result,  on February  16, 2024,  the Respondents  filed with  the Commission a letter \nrequest for dismissal of this claim for a lack of prosecution, with a copy  of this pleading to the \nClaimant being deposited in the mail of the United States Postal Service.    \nThe Commission sent a letter to the Claimant’s last known address with the Commission \non February  20,  2024,  informing  her  of  the  Respondents’  motion  for  dismissal.  Per  this \ncorrespondence, the Claimant was given a deadline of twenty days to file a written response with \nthe Commission to the Respondents’ motion.  Said letter was sent via both first-class and certified \nmail. \nTracking  information  from  the  United States  Postal  Service  shows  that on February  24, \n2024, the above-mentioned certified letter was delivered to the Claimant  when she picked it up \nfrom the Lonoke Post Office.  The Signature and Recipient section of this document shows that \nthe Claimant signed for delivery of this correspondence.  The proof of delivery receipt bears the \nClaimant’s printed name and her signature.  Moreover, the letter sent by first-class mail has not \nbeen returned to the Commission. \n Yet, there was no response from the Claimant.   \nTherefore, pursuant to a Notice of Hearing dated March 12, 2024, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \ndue  to  a  lack  of  prosecution.   Said dismissal hearing  was  scheduled for April  17,  2024, at 9:00 \na.m., at the Arkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \nThe hearing notice was sent to the Claimant via both first-class and certified mail.  Tracking \ninformation received from the United States Postal Service shows that this item was picked up by \nthe Claimant on March 20, 2024, at the local Post Office in Lonoke.  The proof of delivery receipt \n\nMcGRAW – H305052 \n \n4 \n \nbears the Claimant’s printed name and her signature.  Of note, the hearing  notice  sent  to  the \nClaimant via first-class mail has not been returned 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 \nof this claim for a lack of prosecution as scheduled on April 17, 2024.  The Claimant did not appear \nat the dismissal hearing, and she has not responded to the notices of this Commission.  However, \nthe Respondents appeared  through  their  attorney and  argued  for  dismissal  of  this  claim without \nprejudice due to a lack of prosecution.    \nThe Respondents pointed out that there is no record of a hearing ever being requested in \nthis matter.  As a result, the Respondents made the dismissal request.  Therefore, the Respondents \nasked for dismissal of this claim, without prejudice.  \nThe  record  before  me proves  that the  Claimant has failed  to  prosecute  her claim  for \nworkers’ compensation benefits.  The Claimant has not ever requested a hearing since the filing of \nher claim.  She did not appear at the hearing to object to her claim being dismissed and she has not \nresponded to the written notices of this Commission.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant has abandoned her claim for workers’ compensation benefits.  Therefore, per Ark. Code \nAnn. §11-9-702 and Rule 099.13 of this Commission, I find that this claim should be and is hereby \nrespectfully dismissed, without prejudice to the refiling of it within the limitation period specified \nby 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): \n\nMcGRAW – H305052 \n \n5 \n \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, for which a hearing was held. \n \n3. The Claimant has not ever requested a hearing since the filing of her claim \nvia  the  Form  AR-C,  and  she  has  objected  to  her  claim  being  dismissed.  \nHence, the evidence preponderates that the Claimant has failed to prosecute \nher claim for 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 this claim for a lack of prosecution is \nhereby granted, without prejudice, per Ark. Code  Ann. §11-9-702, and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. 11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule 099.13, without  prejudice, to  the  refiling  of it, within the limitation  period \nspecified 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 NO.: H305052 BARBARA McGRAW, EMPLOYEE CLAIMANT LONOKE MIDDLE SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 17, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in Pulaski ...","fetched_at":"2026-05-19T22:55:32.022Z","links":{"html":"/opinions/alj-H305052-2024-04-17","pdf":"https://labor.arkansas.gov/wp-content/uploads/MCGRAW_BARBARA_H305052_20240417.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}