{"id":"alj-H306183-2024-06-27","awcc_number":"H306183","decision_date":"2024-06-27","opinion_type":"alj","claimant_name":"Kenyardis Foreman","employer_name":null,"title":"FOREMAN VS. AMAZON.COM SERVICES, LLCAWCC# H306183June 27, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/FOREMAN_KENYARDIS_H306183_20240627.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOREMAN_KENYARDIS_H306183_20240627.pdf","text_length":11316,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306183 \n \n \nKENYARDIS D. FOREMAN, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nAMAZON.COM SERVICES, LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nAMERICAN ZURICH INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                    RESPONDENT                  \n \nOPINION FILED JUNE 27, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Pulaski County, Little \nRock, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented  by the  Honorable David  C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on June 12, 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.   \nNo testimony was taken. \nThe record consists of the transcript of the June 12, 2024, hearing and the documents held \ntherein.  Explicitly, Commission’s Exhibit 1 includes six  (6) total pages  of  correspondence  and \n\nFOREMAN-H306183 \n \n2 \n \nreturned  mail  from  the  United  States  Postal  Service;  and Respondents’ Exhibit 1 consisting of \nforty-one   (41)   numbered pages of pleadings,   correspondence,   unexecuted   authorizations, \ndiscovery requests, and various other forms related to this claim. \n                                                                 Procedural History \n On September 22, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per \nthis document, the Claimant alleged that he sustained an injury to his back during the course and \nin the scope of his employment with the respondent-employer, November 7, 2022.   \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on September \n29, 2023, wherein they accepted compensability of the claim.  However, the Respondents accepted \nthis claim for a compensable “medical only” back injury.   \n On October 6, 2023, the Respondents’ attorney wrote a letter to the Commission saying \nthat they had accepted the claim for a compensable back injury and paid all appropriate benefits.  \nCounsel for the Respondents also said that the Claimant sustained a compensable back injury to \nhis  back  on October  5,  2022,  instead  of November  7 as shown on  the  Form  AR-C,  filed  by  his \nformer attorney.        \n The Claimant’s attorney obtained a Change of Physician Order from the Commission on \nOctober 17, 2023, for the Claimant to start treating Dr. Ali Raja.   \nSince the filing of the Form AR-C on September 22, 2023, there has been no action on the \npart of the Claimant to prosecute this claim by way of a bona fide request for a hearing.  \nOn November 30, 2023, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter.  There being no objection to the motion \n\nFOREMAN-H306183 \n \n3 \n \nfor the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered an \nOrder on December 19, 2023, granting the motion.      \nStill, there was no action on the part of the Claimant to prosecute this claim by way of a \nbona fide request for a hearing or in any other manner. \nConversely, the Claimant did not attend his appointment with Dr. Ali Raja.  Therefore, on \nMarch 1, 2024, the Commission entered an Order to Set Aside the Change of Physician. \nNo request for a hearing was requested by the Claimant.   \nTherefore,  on or  about April  4,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss Without Prejudice, which  was  accompanied  by a Respondents’ Brief in  Support of \nRespondents’ Motion to Dismiss Without Prejudice, with the Commission, along with a Certificate \nof Service to the Claimant.        \n The Commission sent a letter to the Claimant on April 9, 2024, informing Claimant of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas mailed to the Claimant by both first-class and certified mail.  Tracking information received \nby the Commission from the Postal Service shows that they were unable to deliver this parcel of \nmail to the Claimant.  The letter sent by first-class mail has not been returned to the Commission.   \n As of late, there has not been any type of reply from the Claimant.  \n Pursuant to a Hearing Notice dated May 1, 2024, the Commission notified the parties that \nthe matter had been set for a hearing on the Respondents’ motion to dismiss.  Said hearing was \nscheduled  for June 12, 2024, at the Arkansas Workers’ Compensation Commission located  in \nLittle Rock, Arkansas. \n\nFOREMAN-H306183 \n \n4 \n \nSaid letter was mailed to the Claimant by both first-class and certified mail.  Information received \nfrom the Postal Service shows that they were unable to deliver the letter to the Claimant.  The letter \nsent by first-class mail has not been returned to the Commission.   \nThe  hearing  was  held  as  scheduled.    The  Claimant did  not appear at the  hearing.   The \nRespondents’ counsel argued that  the Claimant  has  failed  to  prosecute  his claim for workers’ \ncompensation benefits.  He further noted that the Claimant has not taken any affirmative action to \nprosecute his claim in over six (6) months.  More specifically, counsel noted that the Claimant has \nnot  taken  any  action  to advance  his claim since  the  filing  of  the  Form  AR-C, which  was  done \nalmost  nine (9) months ago.   Therefore, the Respondents’ attorney moved  that this claim be \ndismissed pursuant  to Ark. Code  Ann. §11-9-702, and/or Commission Rule  099.13,  with or \nwithout prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request for dismissal of this claim are outlined below:  \n Specifically, 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 \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 \n\nFOREMAN-H306183 \n \n5 \n \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 \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor additional workers’ compensation benefits, but  he has  failed  to  do  so.  Specifically,  the \nClaimant  has  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  his claim for \nworkers’ compensation benefits since the filing of the Form AR-C, over nine (9) year ago; and nor \nhas  he  resisted  the motion  for dismissal or  even  responded  to  the  notices  of  this  Commission.  \nHence,  the  evidence  preponderates  that  the  Claimant  has  failed  to  prosecute  this  claim  for \nadditional workers’ compensation benefits.  Moreover,  considering  that  the  Claimant did  not \nrespond to the notices of this Commission and did not appear at the dismissal proceedings, I am \nconvinced that the Claimant has abandoned this claim.          \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702 (d), and Commission Rule 099.13, this claim for additional workers’ compensation \nbenefits should be dismissed without prejudice to the refiling within the limitation period specified \nunder the Arkansas Workers’ Compensation Act (the “Act”). \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 \n\nFOREMAN-H306183 \n \n6 \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since his former attorney filed the \nForm AR-C, which was done more than nine (9) months ago.  Hence, the \nevidence preponderates that the Claimant has failed to prosecute his claim \nfor workers’ compensation benefits based upon the relevant provisions of \nthe  specified  statute,  Ark.  Code  Ann.  11-9-702,  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 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 \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 workers’ compensation benefits.  This dismissal is pursuant \nto Ark. Code Ann. §11-9-702(d), and Commission Rule 099.13, without prejudice to the refiling  \nof this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306183 KENYARDIS D. FOREMAN, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, LLC, EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE...","fetched_at":"2026-05-19T22:53:21.875Z","links":{"html":"/opinions/alj-H306183-2024-06-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/FOREMAN_KENYARDIS_H306183_20240627.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}