{"id":"alj-H306652-2024-07-30","awcc_number":"H306652","decision_date":"2024-07-30","opinion_type":"alj","claimant_name":"Deborah Voyles","employer_name":null,"title":"VOYLES VS. BELVEDERE NURSING REHAB CENTER, LLCAWCC# H306652July 30, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/VOYLES_DEBORAH_H306652_20240730.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VOYLES_DEBORAH_H306652_20240730.pdf","text_length":11536,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306652 \n \n \nDEBORAH VOYLES, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nBELVEDERE NURSING REHAB CENTER, \nLLC, A SUBSIDARY OF CENTRAL ARKANSAS \nNURSING CENTERS, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nINDEMNITY INSURANCE COMPANY \nOF NORTH AMERICA (PA), \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nESIS, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                    RESPONDENT                  \n \nOPINION FILED JULY 30, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Garland County, Hot \nSprings, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented by the Honorable Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \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(a)(4), 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.  Specifically, Commission’s Exhibit 1 includes four (4) total pages of correspondence and \n\nVOYLES-H306652 \n \n2 \n \nreturned receipt from the United States Postal Service; and Respondents’ Exhibit 1 consisting of \ntwenty-one  (21)  numbered pages of pleadings,  correspondence,  unexecuted  authorizations, \ndiscovery requests, and various other forms related to this claim. \nNo testimony was taken at the dismissal hearing. \n                                                                    Discussion \n On October 11, 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 she was  injured during  the  course  and  scope  of  her \nemployment with the respondent-employer, February 3, 2023.  Specifically, the Claimant alleged \ninjuries to her right shoulder, right arm, and other whole body.  Her attorney checked all the boxes \nfor both initial and additional benefits.   \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on November \n2,  2023, wherein  they denied compensability of  the  claim.   Per  this  document,  the claims \nrepresentative stated that the claim was being controverted on the following grounds: “Claim does \nnot meet criteria for compensability.”      \n Since the filing of the Form AR-C on October 11, 2023, there has been no action on the \npart of the Claimant to prosecute this case by way of a bona fide request for a hearing, or otherwise \npursue her claim.  \n On February  8,  2024, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter because she had tried to reach her several \ntimes  by  telephone,  but  her  attempts  had  been  unsuccessful.    There  being  no  objection  to  the \nmotion for the Claimant’s attorney to withdraw as counsel of record for the Claimant in this matter, \nthe Full Commission entered an Order on March 20, 2024, granting the motion.      \n\nVOYLES-H306652 \n \n3 \n \nStill, there was no request for a hearing made by the Claimant.   \nTherefore,  on or  about April 24,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss, which  was  accompanied  by a Brief in  Support of Motion  to  Dismiss,  with  the \nCommission,  along  with a Certificate  of  Service.  Per this documentation, the Respondents’ \nattorney stated that he had served a copy of the foregoing pleading on the Claimant\n1\n by depositing \na copy thereof in the United States Mail.        \n The Commission sent a letter to the Claimant on April 25, 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 delivered this parcel of mail to the \nClaimant  on  April 27,  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 reply from the Claimant.  \n Pursuant to a Hearing Notice dated May 16, 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 Friday, July 26, 2024, in Hot Springs, Arkansas. \nSaid letter was mailed to the Claimant by both first-class and certified mail.  Information \nreceived from the Postal Service shows that they delivered the notice of hearing to the Claimant \non May 18, 2024.  The letter sent by first-class mail has not been returned to the Commission.   \nBased on all of the foregoing tracking information received by the Commission from the \nPostal Service, I find that the Claimant received proper notice of the dismissal hearing.  \n \n1\n Although the Certificate of Service incorrectly indicates that the pleading was mailed to the Claimant’s \nattorney, the Claimant is the named recipient for delivery of said pleading.   \n\nVOYLES-H306652 \n \n4 \n \nNevertheless, the hearing was held as scheduled.  Counsel for the Respondents appeared \nat  the  hearing.    However,  the  Claimant did  not attend the  hearing.   The Respondents’ counsel \nargued that  the Claimant  has  failed  to  prosecute  her claim for workers’ compensation benefits.  \nCounsel further noted that the Claimant has not taken any affirmative action to prosecute her claim \nwell over six (6) months.  More specifically, counsel noted that the Claimant has not taken any \naction to advance her claim since the filing of the Form AR-C, which was done more than a year \nago.  Counsel for the Respondents also stated that the Claimant has not responded to the notices \nof  this  Commission.   Therefore, the Respondents’ attorney moved  that this claim be dismissed \npursuant to Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13, without prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request  for dismissal  of this initial claim for  benefits/compensation are  outlined \nbelow:  \nArk. 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 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 \n\nVOYLES-H306652 \n \n5 \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 her claim \nfor initial workers’ compensation benefits, but she has failed to do so.  Specifically, the Claimant \nhas  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  her claim for workers’ \ncompensation benefits since the filing of the Form AR-C, over more than a year ago; and nor has \nshe resisted the motion for dismissal or even responded to the notices of this Commission.  Hence, \nthe evidence preponderates that the Claimant has failed to prosecute this claim for initial workers’ \ncompensation benefits.  Moreover, considering that the Claimant did not respond to the notices of \nthis Commission and did not appear at the dismissal hearing, I am convinced that the Claimant has \nabandoned her claim for workers’ compensation benefits.          \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 (a)(4) and Commission Rule 099.13, this claim for initial workers’ compensation \nbenefits should be dismissed without prejudice to the refiling within the limitation period specified \nunder the Arkansas Workers’ Compensation 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 \n\nVOYLES-H306652 \n \n6 \n \n2. The Claimant has not requested a hearing since her 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 her claim for initial \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified statute, Ark. Code Ann. §11-9-702 (a)(4), 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 (a)(4), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified 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 initial workers’ compensation benefits.  This dismissal is pursuant to \nArk. Code Ann. §11-9-702(a)(4), 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.: H306652 DEBORAH VOYLES, EMPLOYEE CLAIMANT BELVEDERE NURSING REHAB CENTER, LLC, A SUBSIDARY OF CENTRAL ARKANSAS NURSING CENTERS, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA (PA), INSURANCE CARRIER RESPONDENT ESIS, INC.,","fetched_at":"2026-05-19T22:52:16.996Z","links":{"html":"/opinions/alj-H306652-2024-07-30","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/VOYLES_DEBORAH_H306652_20240730.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}