{"id":"alj-H305138-2024-07-01","awcc_number":"H305138","decision_date":"2024-07-01","opinion_type":"alj","claimant_name":"Tambria Means","employer_name":null,"title":"MEANS VS. AIRGAS DRY ICEAWCC# H305138July 1, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:3"],"injury_keywords":["shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Means_Tambria_H305138_20240701.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Means_Tambria_H305138_20240701.pdf","text_length":6831,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305138 \n \nTAMBRIA MEANS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGAS DRY ICE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTARR SPECIALTY INSURANCE CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nAMENDED OPINION FILED JULY 1, 2024 \n \nHearing conducted on Wednesday, June 20, 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. Tambria L. Means, pro se, of Little Rock, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Rick Behring Jr., 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 20, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s alleged injury was on July 11, 2023. She reported her injury to Respondent/Employer \non August 15,  2023. Admitted  into  evidence  was Respondents Exhibit  1,  pleadings and \ncorrespondence, consisting of fifteen pages. I have also blue-backed a certified returned envelope \nreceived June 11, 2024, as discussed infra. \nThe  record  reflects on August 11,  2023,  a  Form AR-C  was  filed  with  the  Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting an alleged shoulder injury. This report \n\nMEANS, AWCC No. H305138 \n \n2 \n \ndoesn’t state which shoulder was injured. On August 23, 2023, a Form AR-1 was filed in this case, \nreflecting  that  Claimant  purportedly reported  to  her manager  that she  woke  up  with  pain. This \nrecord does not reflect where the pain was located. Respondents on August 23, 2023, filed a Form \nAR-2, challenging the compensability of Claimant’s alleged injury. In short, this report states that \nClaimant’s injury doesn’t meet the burden of proof for a workers’ compensation claim. Attorney \nRick  Behring entered  his  appearance  on  behalf  of  the  Respondents  on September 6,  2023. On \nNovember 28, 2023, the Claimant requested a hearing with the Commission. However, on January \n22, 2024, the Claimant, through counsel, withdrew the hearing request and the file was returned to \ngeneral  files. Attorney  Peoples filed  a  Motion  to  Withdraw  as  Counsel that  was  granted on \nFebruary 26, 2024. \nThe Respondents next filed a Motion to Dismiss on April 10, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The Claimant  was  sent, certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on April 15, 2024, her last known address. The \ncertified notice was not claimed by Claimant. However, the notice sent regular U.S. Mail was not \nreturned to the Commission. Claimant did not respond to the notice in writing as required. Thus, \nin accordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice \nof Respondents’ Motion to Dismiss hearing date at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail, on May 10, 2024. The certified notice was returned to the Commission unclaimed \nbut the regular First-Class mail notices were not returned. The hearing took place on June 20, 2024. \nAs mentioned before, the Claimant did not show up to the hearing. \n \n \n\nMEANS, AWCC No. H305138 \n \n3 \n \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 \n2. The Claimant and Respondents both had reasonable notice of the June 20, 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. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 11, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 10, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to  it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \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 \nAugust 11, 2023, and requested a hearing on November 28, 2023, through her then-attorney Mark \n\nMEANS, AWCC No. H305138 \n \n4 \n \nPeoples. However, on January 22, 2024, Attorney Peoples withdrew the request for a hearing and \nthe Claim was returned to general files. Since then, Claimant has not made a demand for a hearing \nor has taken any other action in furtherance of this claim. In this regard, the Claimant has failed to \ndo the bare minimum in prosecuting her claim. Therefore, I do find by the preponderance of the \nevidence  that  Claimant  has  failed  to  prosecute  her claim  by  failing  to  request  a  hearing.  Thus, \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 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. H305138 TAMBRIA MEANS, EMPLOYEE CLAIMANT AIRGAS DRY ICE, EMPLOYER RESPONDENT STARR SPECIALTY INSURANCE CO., CARRIER/TPA RESPONDENT AMENDED OPINION FILED JULY 1, 2024 Hearing conducted on Wednesday, June 20, 2024, before the Arkansas Workers’ Compensation Comm...","fetched_at":"2026-05-19T22:50:40.534Z","links":{"html":"/opinions/alj-H305138-2024-07-01","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Means_Tambria_H305138_20240701.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}