{"id":"alj-H306897-2024-06-28","awcc_number":"H306897","decision_date":"2024-06-28","opinion_type":"alj","claimant_name":"Stephanie Dority","employer_name":null,"title":"DORITY VS. ACE HARDWARE CORP.AWCC# H306897June 28, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:3"],"injury_keywords":["neck","back","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Dority_Stephanie_H306897_20240628.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dority_Stephanie_H306897_20240628.pdf","text_length":6555,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306897 \n \nSTEPHANIE DORITY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nACE HARDWARE CORP., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER                                                                                                             RESPONDENT \n \nESIS, INC., \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \n \nOPINION FILED JUNE 28, 2024 \n \nHearing conducted on Wednesday, June 25, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Stephanie L. Dority, pro se, of Conway, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Michael E. Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 25, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s  alleged injury    was    on October 7,    2022. She    reported    her injury    to \nRespondent/Employer  on the  same  day. Admitted  into  evidence  was Respondents Exhibit  1, \nMotion  to  Withdraw  and  Form  AR-C,  consisting  of three  pages. I  have  also  blue-backed Form \n\nDORITY, AWCC No. H306897 \n2 \n \nAR-1, Form AR-2, a certified returned receipt dated June 8, 2024, Melanie Miller email dated May \n23, 2024, and Motion to Dismiss hearing notice, as discussed infra. \nThe  record  reflects on October 20,  2023,  a  Form AR-C  was  filed  with  the  Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting she injured her neck, back, leg, knee, \nand head. On October 31, 2023, a Form AR-1 was filed in this case, reflecting that Claimant injured \nherself while moving product off a pallet when her right foot was caught, and she fell. Respondents \non October  31,  2023,  filed  a  Form  AR-2, accepting compensability. Respondents’ Counsel, \nMichael Ryburn, entered his appearance on November 9, 2023. Attorney Peoples filed a motion \nto Withdraw on February 26, 2024, citing differences of opinion regarding the prosecution of this \ncase. The Motion to Withdraw was granted on March 20, 2024.  \nThe Respondents’ filed a Motion to Dismiss on April 18, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on April 24, 2024, to her last known address. The certified \nnotice was returned unclaimed by Claimant on May 9, 2024. The notice sent regular U.S. Mail did \nnot  returned  to  the  Commission. Claimant  did  not  respond  to the notice in  writing as  required. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice  of Respondents’ Motion  to Dismiss  hearing date at  her current  address  of  record  via  the \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail, on May 23, 2024. The certified notice was returned to the Commission \nunclaimed, but  the  regular  First-Class  mail  notice  was not  returned. The  hearing  took  place on \nJune 25, 2024. As mentioned before, the Claimant did not show up to the hearing. \n \n \n\nDORITY, AWCC No. H306897 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  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: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 25, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 8, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 23, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nOctober 20, 2023, and since then, Claimant has not made a demand for a hearing or has taken any \n\nDORITY, AWCC No. H306897 \n4 \n \nother action in furtherance of the prosecution of this claim. In this regard, the Claimant has failed \nto do the bare minimum in prosecuting her claim. Therefore, I do find by the preponderance of the \nevidence that Claimant has failed to prosecute her claim by failing to request a hearing and moving \nher claim forward. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306897 STEPHANIE DORITY, EMPLOYEE CLAIMANT ACE HARDWARE CORP., SELF-INSURED EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT ESIS, INC., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 28, 2024 Hearing conducted on Wednesda...","fetched_at":"2026-05-19T22:53:30.327Z","links":{"html":"/opinions/alj-H306897-2024-06-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Dority_Stephanie_H306897_20240628.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}