{"id":"alj-H306052-2024-05-08","awcc_number":"H306052","decision_date":"2024-05-08","opinion_type":"alj","claimant_name":"Kenneth Hooper","employer_name":null,"title":"HOOPER VS. BLAN TRACTOR CO., INC.AWCC# H306052May 8, 2024","outcome":"dismissed","outcome_keywords":["dismissed:1","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/HOOPER_KENNETH_H306052_20240508.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOOPER_KENNETH_H306052_20240508.pdf","text_length":6031,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306052 \n \nKENNETH J. HOOPER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBLAN TRACTOR CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nCHEROKEE INS. CO./ \nCHEROKEE INS. CO., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED MAY 8, 2024 \n \nHearing conducted on Wednesday, May 8, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Kenneth J. Hooper, pro se, of Hampton, Calhoun County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable R. Scott Zuerker, Ledbetter, Cogbill, Arnold \n& Harrison, LLP, Fort Smith, Sebastian County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Wednesday, May 8, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement)  and  Commission Rule  099.13  (2024 Lexis Replacement). The  hearing  was \nscheduled  to  begin  at  11  a.m.  but,  as  is  his  standard  operating  procedure,  the  ALJ  provided  the \nclaimant  additional  time  to  appear  before  he  began  the  hearing.  The  ALJ  sounded  the  hall, \ndetermined the claimant was not present, and he began the hearing.   \n The respondents filed a motion to dismiss without prejudice (MTD) with the Commission \non March 18, 2024, requesting this claim be dismissed without prejudice for lack of prosecution. \nConsistent with the applicable Arkansas law, thereafter the Commission mailed a copy of both the \n\nKenneth J. Hooper, AWCC No. H306052 \n \n2 \n \nrespondents’ MTD and  the  subject  hearing  notice to  the  claimant via  the  United  States  Postal \nService  (USPS),  Certified  Mail,  Return  Receipt  Requested,  to  his last  known  address  of  record \nwith the Commission, which the claimant received in March 2024 and April 2024, respectively. \n(Commission Exhibits 1 and 2). Thereafter, the claimant failed and/or refused to respond in any \nway to either the Commission or to the respondents; and she failed and/or refused to appear at the \nsubject hearing. The claimant never objected in any way to the respondents’ MTD. The claimant \nhad at one time been represented by counsel, but was pro se at the time of the hearing date pursuant \nto the Commission’s order filed January 9, 2024, granting the claimant’s attorney’s motion to \nwithdraw as counsel. (Respondents’ Exhibit 1B; Reporters’ Hearing Transcript) \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute his claim, and he has failed and/or refused to \nrequest a hearing within the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n\nKenneth J. Hooper, AWCC No. H306052 \n \n3 \n \n \n 2.        After the Commission mailed due and legal notice of both the respondents’ letter  \n                 MTD as well as a copy of the notice for the subject hearing to the claimant’s last \n                 known address of record with the Commission, the claimant failed and/or refused \n                 to respond to the MTD in any way; or to object to the subject MTD; or to request a \n                 hearing on the merits of his claim.  \n \n            3.         Moreover, the claimant failed and/or refused to appear at the subject hearing and, \n                        therefore, has waived his right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing on the merits of his claim within the \n                   last six (6) months. \n \n 5. Therefore, the respondents’ aforementioned MTD filed with the \n                  Commission on March 18, 2024, should be and hereby is GRANTED. \n      \n      6.         This claim is dismissed without prejudice to its refiling pursuant to the deadlines \n                  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule 099.13. \n \n This opinion  and  order  shall not be  construed  to  prohibit  the claimant, his attorney, any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306052 KENNETH J. HOOPER, EMPLOYEE CLAIMANT BLAN TRACTOR CO., INC., EMPLOYER RESPONDENT CHEROKEE INS. CO./ CHEROKEE INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MAY 8, 2024 Hearing conducted on Wednesday, May 8, 202...","fetched_at":"2026-05-19T22:54:03.940Z","links":{"html":"/opinions/alj-H306052-2024-05-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/HOOPER_KENNETH_H306052_20240508.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}