{"id":"alj-H306893-2024-08-15","awcc_number":"H306893","decision_date":"2024-08-15","opinion_type":"alj","claimant_name":"Terry Keeling","employer_name":"Walmart Associates Inc","title":"KEELING VS. WALMART ASSOCIATES INC. AWCC# H306893 August 15, 2024","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:4","denied:1"],"injury_keywords":["back","hip","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Keeling_Terry_H306893_2024815.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Keeling_Terry_H306893_2024815.pdf","text_length":5370,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H306893 \n \nTERRY KEELING,  \nEMPLOYEE  CLAIMANT \n \nWALMART ASSOCIATES INC., \nSELF INSURED/EMPLOYER/TPA                                                                           RESPONDENT \n \n \nOPINION FILED AUGUST 15, 2024 \n \nHearing before Administrative Law Judge Steven Porch on August 6, 2024, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant represented herself, Pro se, Little Rock, Arkansas. \n \nThe Respondents were represented  by  Mr. Rick  Behring  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non May 22, 2024. The Claimant worked as a team associate for Respondent/Employer. Admitted \ninto evidence is Respondents’ Exhibit 1, correspondence and pleadings, consisting of 15 pages. I \nhave  also  blue-backed  postal  return receipts  dated  June  7,  2024,  and July  6,  2024, as  discussed \ninfra. \nThe record reflects on October 23, 2023, a Form AR-1 was filed alleging Claimant slipped \nand  fell  in  the  bakery  and  landed  on  her  back. Claimant’s injury occurred on  August  21,  2023. \nClaimant reported the injury to Respondent/Employer on August 26,  2023. Respondents filed a \nForm AR-2, on October 23, 2023, not stating any grounds for controverting the claim. Claimant’s \nthen-counsel,  Laura  Beth  York, on November 14,  2023, filed a  Form  AR-C,  purporting that \nClaimant injured her chest, ribs, right hip, left hip, head, neck, and back. Claimant’s counsel next \n\nKEELING AWCC No. H306893 \n \n 2 \nfiled a Motion to Withdraw as Claimant’s Counsel on February 29, 2024. The motion was granted \non March 20, 2024, by the Full Commission.  \nThe Respondents next filed a Motion to Dismiss on May 22, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss on May 23, 2024, to her last known address of record. The certified \nnotice  was not claimed  by  Claimant per  postal  receipt  dated  June 7,  2024.  Likewise,  the  notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on June 21, 2024. The certified notice was not claimed \nby the Claimant per postal receipt dated July 6, 2024. The hearing took place on August 6, 2024, \nand the Claimant did show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All  parties  received reasonable notice  of  the August  6,  2024, Motion  to Dismiss \nhearing date. \n \n3. Respondents did not prove by a preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n5.         This claim is hereby dismissed without prejudice.     \n\nKEELING AWCC No. H306893 \n \n 3 \nIII.  DISCUSSION \n AWCC 099.13 provides: \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. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \nher  claim prior  to the  hearing  date. Thus, I find that the Respondents have  not proven  by  the \npreponderance of the evidence that its Motion should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted and this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H306893 TERRY KEELING, EMPLOYEE CLAIMANT WALMART ASSOCIATES INC., SELF INSURED/EMPLOYER/TPA RESPONDENT OPINION FILED AUGUST 15, 2024 Hearing before Administrative Law Judge Steven Porch on August 6, 2024, in Little Rock, Pulaski County, Arkansas. Claim...","fetched_at":"2026-05-19T22:50:06.879Z","links":{"html":"/opinions/alj-H306893-2024-08-15","pdf":"https://labor.arkansas.gov/wp-content/uploads/Keeling_Terry_H306893_2024815.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}