{"id":"alj-H307272-2024-11-18","awcc_number":"H307272","decision_date":"2024-11-18","opinion_type":"alj","claimant_name":"Joshua Gayler","employer_name":"Wendy’s Old Fashioned Hamburgers","title":"GAYLER VS. WENDY’S OLD FASHIONED HAMBURGERS AWCC# H307272 November 18, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","denied:3"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GAYLER_JOSHUA_H307272_20241118.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAYLER_JOSHUA_H307272_20241118.pdf","text_length":7986,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H307272 \n \nJOSHUA GAYLER,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nWENDY’S OLD FASHIONED HAMBURGERS, \nEMPLOYER                                                                                                           RESPONDENT                                                                                               \n \nTRAVELERS CASUALTY INSURANCE CO.                \nOF AMERICA/TRAVELERS INDEMNITY CO., \nINSURANCE CARRIER/TPA                                                                              RESPONDENT                                                    \n \nOPINION FILED NOVEMBER 18, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nClaimant, pro se, failed to appear at the hearing.      \n \nRespondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on the Respondents’ motion to dismiss for lack of  prosecution, on \nNovember 6, 2024, in the above styled workers’ compensation matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here,  the  sole  issue  for \ndetermination is whether this matter should be dismissed due to the Claimant’s failure to timely \nprosecute it  under the  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas \nWorkers’ 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 at the dismissal hearing. \n\nGAYLER – H307272 \n \n2 \n \nThe  record  consists  of  the  transcript  of November 6, 2024, dismissal hearing  and  the \ndocuments  held  therein.  Specifically,  Commission’s  Exhibit  1  includes six total  pages  of \ncorrespondence,  pleadings  and  various  other  forms related  to  this  claim,  along  with  tracking \ninformation from the United States Postal Service; and Respondents’ Exhibit 1 consisting of \nfourteen (14) pages, which includes correspondence from the Commission. \n          Procedural History \nIn the case at bar, the Claimant alleged that he sustained an injury on October 28, 2023, \nduring and in the course of his employment with respondent-employer.  On October 31, 2023, per \na Workers’ Compensation – First Report of Injury Form, the Claimant reported to his employer \nthat  he  twisted  his  knee  as  he  walked  out  of  the  office.  However,  the evidence  of  record  does \nreflect that the Claimant ever filed with the Commission a Form AR-C in this matter.  Nor did the \nClaimant ever file with the Commission any other means of documentation sufficient to establish \na claim for workers’ compensation benefits.    \n Nevertheless, on or about November 13, 2023, the Respondents filed a Form AR-2 with \nthe  Commission controverting this claim.  Specifically, the Respondents stated: “No  injury  per \nstatutory definition.”  \nSubsequently, in February of 2024, prehearing questionnaires and notices were sent to the \nparties.   The  Respondents  filed  a  timely  response  with  the  Commission  on  March  5,  2024.  \nHowever, the  Claimant did  not file  a response.   As  a  result,  the  file  was  returned  to  the \nCommission’s general files.  \n Since  the assertion of a workers’ compensation claim, the Claimant has not taken any \naction  to  pursue  this matter.  Nor  has  the  Claimant  made  a  bona  fide  request  for  a  hearing,  or \notherwise tried to pursue his assertion for a workers’ compensation claim.         \n\nGAYLER – H307272 \n \n3 \n \nTherefore, on August 15, 2024, the Respondents filed a letter motion asking that the claim \nbe dismissed for a lack of prosecution.    \nOn August 21, 2024, I sent a letter to the Claimant letting him know about the motion for \ndismissal of this matter, along with a deadline for filing a written objection. This correspondence \nwas sent to the Claimant via first-class and certified mail.  The letter sent to the Claimant via first-\nclass mail has not been returned to the Commission.  However, the notice sent via certified mail \nwas returned to the Commission marked “unclaimed-unable to forward.”       \nYet, there was no response from the Claimant.    \nNevertheless, pursuant to a Notice of Hearing dated September 12, 2024, this matter was \nset for a hearing on November 6, 2024, at 12:30 p.m., in El Dorado.   \nThe hearing notice was sent to the Claimant via first-class and certified mail.  The notice \nsent via certified mail was not returned to the Commission marked “unclaimed, unable to forward.”  \nHowever,  the  notice  sent  to  the  Claimant  via  first-class  mail  has  not  been  returned  to  the \nCommission.  This evidence preponderates that the Claimant received notice of the hearing.    \nStill, there was no response from the Claimant regarding this matter. \nNevertheless, I conducted a hearing on the Respondents’ motion to dismiss as scheduled.  \nHowever, the Claimant did not appear at the hearing to object to his claim being dismissed.  The \nRespondents  appeared  through  their  attorney.   During  the  hearing,  counsel for  the  Respondents \nmoved that this matter be dismissed due to a lack of prosecution.  Counsel specifically noted that \nnothing has been done or in any way has this claim been pursued by the Claimant.       \n                                    Analysis \nTypically,  a  Form  AR-C is  the  means  for  filing  a  “formal  claim,” for  workers’ \ncompensation benefits.  In the present matter, no Form AR-C has ever been filed in this matter.  \n\nGAYLER – H307272 \n \n4 \n \nHowever, I recognize that other means exist to instigate the filing of a claim for Arkansas workers’ \ncompensation benefits other than by way of a Form AR-C.   \nNevertheless, I am unable to find any document of record or even in the Commission’s file \nthat would  suffice  to constitute  the  filing  of  a  claim  for  benefits.    As  such,  I must find that  no \ndocument of record exists to support a finding that the Claimant ever filed with the Commission, \na claim for workers’ compensation benefits in this matter.   \nBecause no claim has ever been filed by the Claimant, I am compelled to find that there is \nno claim subject to dismissal per the Respondents’ motion.  Therefore, the motion to dismiss is \nhereby respectfully denied. \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 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. A  Form  AR-C  or  any  other  document sufficient  to constitute a  claim  for \nworkers’ compensation benefits has never been filed in this matter. \n \n3. The  evidence  preponderates  that  the  Claimant  received  notice of  the \nRespondents’ motion to dismiss this matter for a lack of prosecution. \n \n4. The Respondents’ motion to dismiss is denied because no claim exists to be \nsubject to dismissal.    \n \nORDER \n The Respondents’ motion to dismiss this matter is hereby respectfully denied because \nthere is no document of evidence sufficient to constitute the filing of a claim for Arkansas workers’ \ncompensation benefits.  Hence, it follows that considering that no claim has ever been filed, there  \n \n\nGAYLER – H307272 \n \n5 \n \nis no claim subject to being dismissed.    \nIT IS SO ORDERED. \n   \n \n                                                                    ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H307272 JOSHUA GAYLER, EMPLOYEE CLAIMANT WENDY’S OLD FASHIONED HAMBURGERS, EMPLOYER RESPONDENT TRAVELERS CASUALTY INSURANCE CO. OF AMERICA/TRAVELERS INDEMNITY CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 18, 2024 Hearing held before Adminis...","fetched_at":"2026-05-19T22:46:25.902Z","links":{"html":"/opinions/alj-H307272-2024-11-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GAYLER_JOSHUA_H307272_20241118.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}