{"id":"alj-H306360-2024-08-06","awcc_number":"H306360","decision_date":"2024-08-06","opinion_type":"alj","claimant_name":"David Beard","employer_name":null,"title":"BEARD VS. LEVI TOWERS, INC.AWCC# H306360August 6, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/BEARD_DAVID_H306360_20240806.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEARD_DAVID_H306360_20240806.pdf","text_length":10754,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306360 \n \n \nDAVID R. BEARD, \nEMPLOYEE                                                                                                                CLAIMANT \n \nLEVI TOWERS, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nWESCO INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nAM TRUST NORTH AMERICA,  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT                  \n \nOPINION FILED AUGUST 6, 2024 \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Garland County, Hot \nSpring, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented by the Honorable William C. Frye, Attorney at Law, North Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on July 26, 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.   \nThe record consists of the transcript of the July 26, 2024, hearing and the documents held \ntherein.  Explicitly, Commission’s Exhibit 1 includes six (5) total pages of correspondence and the \nreturn receipts for the certified mail sent via the United States Postal Service; and Commission’s \n\nBEARD-H306360 \n \n2 \n \nExhibit 2 is the form Workers’ Compensation – First Report of Injury or Illness, which has been \nblue-backed and made a part of the record for the July 26, 2024, hearing transcript. Additionally, \nRespondents’ Exhibit 1 consists of three (3) pages of various documents relating to this claim. \nNo testimony was taken. \n                                                            BACKGROUND \n On September 28, 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 injuries to his back, left elbow, right elbow, \nand other whole body during the course and in the scope of his employment with the respondent-\nemployer, on September 5, 2023.   \nSubsequently the Respondents filed a First Report of Injury or illness with the Commission \non  October  5,  2023,  accepting  the  claim  as  a  compensable  injury  to  the  Claimant’s  back \nlower/lumbar/sacral spine. \n Since the filing of the Form AR-C on September 28, 2023, a year ago, there has been no \naction  on  the  part  of  the  Claimant  to  prosecute  this  claim by  way  of  a  bona  fide  request  for  a \nhearing.  \nOn February  13,  2024, 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 \nfor the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered an \nOrder on March 5, 2024, 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.   \n\nBEARD-H306360 \n \n3 \n \nTherefore,  on or  about April 1,  2024, the  Respondents filed a letter Motion  to Dismiss, \nwith the Commission.  The Respondents mailed a copy of this pleading to the Claimant by way of \nthe United States Postal Service.         \n The  Commission  sent  a letter to  the Claimant on April 2, 2024, informing him 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 able to deliver this parcel of mail \nto the Claimant on April 6, 2024.  The letter sent by first-class mail has not been returned to the \nCommission.   \n As of late, there has not been any type of answer back from the Claimant.  \n On April 24, 2024, the Commission notified the parties per a Notice of Hearing that the \nmatter had been set for a hearing address the Respondents’ motion to dismiss.  Said hearing was \nscheduled for July 26, 2024, in Hot Springs, Arkansas. \nSaid  letter  was sent to  the  Claimant via first-class  and  certified  mail.  The  Commission \nreceived information from the Postal Service’s tracking system which shows that they delivered \nthe notice of hearing to the Claimant’s home on April 26, 2024.  The letter sent via first-class mail \nhas not been returned to the Commission.  Based on the foregoing, the evidence preponderates that \nthe Claimant received appropriate notice of the dismissal hearing.  \nNevertheless, the dismissal hearing was held as scheduled.  The Claimant failed to appear \nat the hearing.  Counsel for the Respondents appeared on their behalf.  He argued that the Claimant \nhas failed to prosecute his claim for workers’ compensation benefits.  He further noted that the \nClaimant has not taken any affirmative action to prosecute his claim in over six (6) months.  More \nspecifically, counsel noted that the Claimant has not taken any action to advance the prosecution \n\nBEARD-H306360 \n \n4 \n \nof his claim since  the  filing  of  the  Form  AR-C, which  was  done a  year ago.   Therefore, the \nRespondents’ attorney moved that this claim be dismissed pursuant to Ark. Code Ann. §11-9-702, \nand/or Commission Rule 099.13, with or without prejudice.  \nADJUDICATION \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, 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 \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 almost a year ago; and \nnor has he resisted the motion for dismissal or even responded to the notices of this Commission \n\nBEARD-H306360 \n \n5 \n \ndespite having received delivery of them by the Postal Service.  Moreover, considering that the \nClaimant did not respond to the notices of this Commission and did not appear at the dismissal \nproceedings, I am convinced that the Claimant has abandoned claim.  \nHence, the evidence preponderates that the Claimant has failed to prosecute this claim for \nadditional workers’ compensation benefits.  Therefore, after consideration of the evidence before \nme, I find that the Respondents’ motion to dismiss for a lack of prosecution to be well taken.  I \nthus find that pursuant to Ark. Code Ann.§11-9-702 (d), and Commission Rule 099.13, this claim \nfor additional workers’ compensation benefits should  be  dismissed, without  prejudice, to  the \nrefiling of  it within  the limitation  period specified under the Arkansas Workers’ Compensation \nAct (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 \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 a year ago.  Hence, the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann. §11-9-702(d),  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate notification of the dismissal hearing was had 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 (d), and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n\nBEARD-H306360 \n \n6 \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               Chandra L. Black \n               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306360 DAVID R. BEARD, EMPLOYEE CLAIMANT LEVI TOWERS, INC., EMPLOYER RESPONDENT WESCO INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT AM TRUST NORTH AMERICA, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 6, 2024 A hearing was held before Admin...","fetched_at":"2026-05-19T22:49:45.874Z","links":{"html":"/opinions/alj-H306360-2024-08-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/BEARD_DAVID_H306360_20240806.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}