{"id":"alj-H305647-2024-07-16","awcc_number":"H305647","decision_date":"2024-07-16","opinion_type":"alj","claimant_name":"Dylan Gray","employer_name":null,"title":"GRAY VS. PREDDY CONSTRUCTIONAWCC# H305647July 16, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:2"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GRAY_DYLAN_H305647_20240716.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAY_DYLAN_H305647_20240716.pdf","text_length":11245,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.:H305647 \n \nDYLAN GRAY,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nPREDDY CONSTRUCTION, \nEMPLOYER                                                                                                            RESPONDENT              \n                                                                                  \nFIRSTCOMP INSURANCE COMPANY,                \nINSURANCE CARRIER                                                                                        RESPONDENT                                               \n \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINSTRATOR                                                                      RESPONDENT  \n \n \nOPINION FILED JULY 16, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing.      \n \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on the Respondents’ motion to dismiss due to a lack of prosecution, on \nApril 24, 2024, in this workers’ compensation claim pursuant to Dillard v. Benton County Sheriff’s \nOffice,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here,  the  sole  issue  for determination  is \nwhether this claim should be dismissed due to the Claimant’s failure to prompt prosecute it under \nthe  provisions  of Ark.  Code  Ann.  §11-9-702 (a) (4) (Repl.  2012),  and/or Arkansas Workers’ \nCompensation 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.   \n\nGRAY – H305647 \n \n2 \n \nThe record consists of the transcript of the April 24, 2024, hearing and the documents held \ntherein.  Also made a part of the record were Commission’s Exhibit 1 consisting of thirty-seven \n(37) pages; and the Respondents’ Hearing Exhibit consisting of  one (1)  page was  marked  as \nRespondents’ Exhibit 1.  Both exhibits were made a part of the record without objection. \nNo testimony was taken at the hearing. \n            Procedural History \n The Claimant has alleged that he sustained an injury at work on August 4, 2023, for which \nhe has asserted his entitlement to medical treatment and indemnity benefits.  On October 1, 2023, \nthe  Claimant  filed  a letter-claim requesting a hearing on his workers’ compensation case.  The \nRespondents have controverted this claim in its entirety and no benefits have been paid.  Therefore, \nthis is a claim for initial benefits.  The Claimant’s letter meets the requirement for filing a claim \nfor initial benefits.  Specifically, the Claimant wrote in his letter to the Commission that his claim \nwas due to heat exhaustion and his boss would not allow him to go home when he knew he had a \nfever.  Explicitly, the Claimant wrote: “... It was explained to me that my claim was for Covid \nonly and that is not correct, I found out I had Covid while leaving the hospital.”   \n    The  Respondents  filed  a  Form  AR-2  with  the  Commission  on  August  31, 2023, \ncontroverting the claim.  Their grounds for denial of the claim were stated as: “Denied as work \nwas not the contributing factor in Claimant contracting COVID.”  \n Subsequently, on November 13, 2023, the Legal Advisors’ Division returned the claim to \nthe  Office  of  the  Clerk  of  the  Commission asking  that  it be  assigned to  an Administrative Law \nJudge  for  a  hearing  after  their  attempt  to  set  up  a mediation  conference failed.   As  a  result,  the \nclaim was assigned to this office for adjudication.  \n\nGRAY – H305647 \n \n3 \n \nUpon receipt of this claim, the prehearing process was started.  Specifically, on November \n29, 2023, I mailed Prehearing Questionnaires and Preliminary Notices to the parties.  The Claimant \ndid not make a responsive filing.  Therefore, on February 5, 2024, I returned the case to the Clerk \nof the Commission asking that it be returned to the Commission’s general files, which was done.     \nSince this time, the Claimant has failed to make a request for a hearing and has not taken \nany affirmative action to pursue his claim for workers’ compensation benefits.           \nTherefore, the  Respondents  filed  a  Motion  to  Dismiss  for  Failure  to  Prosecute  with the \nCommission on  March  4,  2024,  along  with  a  certificate  of  service showing that  a  copy  of  this \npleading was sent via email and U.S Mail.   \nOn March 5, 2024, the Commission sent a letter to the Claimant letting him know about \nthe motion for dismissal of his workers’ compensation claim, along with a deadline of twenty (20) \ndays for filing a written objection/response. \nSaid letter notice was sent to the Claimant by way of first-class and certified mail via the \nPostal  Service.   The  letter  sent  to  Claimant  via  certified  mail  was  returned  to  the  Commission \nmarked “Return to Sender – vacant – Unable to Forward.”  However, the letter sent via first-class \nmail has not been returned to the Commission. \nYet, there has been no response from the Claimant.  \nIn a Notice of Hearing dated March 27, 2024, setting this case for a dismissal hearing on \nApril 24, 2024, at the Commission in Little Rock, Arkansas. \nSaid hearing notice was sent to the Claimant via first-class and certified mail via the Postal \nService.  The letter sent to Claimant via certified mail was returned to the Commission marked \n“Return to Sender – vacant – Unable to Forward.”  However, the letter sent via first-class mail has \nnot been returned to the Commission.  Therefore, I find that the Claimant had notice of the hearing. \n\nGRAY – H305647 \n \n4 \n \nStill, there has been no response from the Claimant.  \nNevertheless,  a hearing  was conducted before  the  Commission, on  the  Respondents’ \nmotion to dismiss as scheduled.   During the hearing, counsel for the Respondents moved that this \nclaim be dismissed due to a lack of prosecution under Ark. Code Ann. §11-9-702 and Rule 099.13, \nwithout prejudice.  Counsel specifically noted that the Claimant has asserted a claim for a heat-\nrelated, and possibly a COVID injury, but there has been no bona fide effort by the Claimant to \npursue his claim.  The Respondents’ attorney also moved that the within claim be dismissed for a \nlack of prosecution because it has been more than six (6) months since the assertion of a claim by \nthe Claimant without any action being taken by the Claimant to pursue his claim.  Moreover, the \nClaimant did not appear at the hearing to object to his claim for workers’ compensation benefits \nbeing dismissed.   \n                    Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for the dismissal of this claim are outlined below:  \nMainly, Ark. Code Ann. §11-9-702(a)(4) provides:  \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 the limitation periods specified in subdivisions (a)(1)-(3) of 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 a 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\nGRAY – H305647 \n \n5 \n \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 records shows that more than six (6) months have passed after the filing of \nthis claim.  However, since that time, the Claimant has failed to make a bona fide request for  a \nhearing with respect to his claim for workers’ compensation benefits.  Hence, no probative action \nwhatsoever has been put forth by the Claimant to resolve or pursue his claim.      \nUnder these circumstances, I am persuaded that the Claimant has had ample time to pursue \nthis claim for benefits but has not done so.  Therefore, based on my review of the documentary \nevidence, and all other matters properly before the Commission, I find that the Respondents’ \nmotion to dismiss the within claim for initial workers’ compensation benefits should be granted \npursuant to the provisions of Ark. Code Ann. §11-9-702 (a)(4) , and Rule 099.13. Accordingly, \nthis claim is hereby respectfully dismissed without prejudice to  the  refiling of it within  the \nlimitation period specified by 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): \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 requested a hearing since the filing of his letter-claim \nfor  workers’  compensation  benefits in  October 2023,  and  he  has  not \nobjected to his claim being dismissed.  Hence, the evidence preponderates \nthat   the   Claimant   has   failed   to   prosecute   his claim  for  workers’ \ncompensation benefits.      \n\nGRAY – H305647 \n \n6 \n \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 (a)(4), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \nBased on the foregoing Findings of Fact and Conclusions of Law, I find that pursuant to \nArk. Code Ann. §11-9-702 (a)(4)  and Rule 099.13, this claim is hereby respectfully dismissed, \nwithout prejudice, to the refiling within the limitation 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 NO.:H305647 DYLAN GRAY, EMPLOYEE CLAIMANT PREDDY CONSTRUCTION, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINSTRATOR RESPONDENT OPINION FILED JULY 16, 2024 Hearing held before Administrative...","fetched_at":"2026-05-19T22:51:24.639Z","links":{"html":"/opinions/alj-H305647-2024-07-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GRAY_DYLAN_H305647_20240716.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}