{"id":"alj-H400450-2024-12-20","awcc_number":"H400450","decision_date":"2024-12-20","opinion_type":"alj","claimant_name":"Raymond Rosario","employer_name":"Alter Trading, Inc","title":"ROSARIO VS. ALTER TRADING, INC. AWCC# H400450 December 20, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ROSARIO_RAYMOND_H400450_20241220.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROSARIO_RAYMOND_H400450_20241220.pdf","text_length":10716,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H400450 \n \n \nRAYMOND ROSARIO, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nALTER TRADING, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nARCH INDEMNITY INSURANCE, CO., /GALLAGHER  \nBASSETT SERVICES, INC.,/INSURANCE CARRIER/THIRD  \nPARTY ADMINISTRATOR(TPA)                                                                        RESPONDENT   \n          \nOPINION FILED DECEMBER 20, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on December  19, 2024,  in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702, and/or 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.   \nNo testimony was taken. \nThe  record  consists  of  the  transcript  of December  19, 2024, hearing  and  the  documents \nheld therein.  The Commission’s Exhibit consists of two pages,  which  were  provided to  the \nCommission by the United States Postal Service.  It was marked accordingly.  The Respondents’ \n\nROSARIO-H400450 \n \n2 \n \nExhibit  1 consists of nine (9)  numbered  pages of pleadings,  correspondence,  and  various  other \nforms related to this claim. \n                                                             Procedural History \n On January  22,  2024, the Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nhe sustained injuries during the course and in the scope of his employment with the respondent-\nemployer, on December 20, 2023, while unlatching a semi-trailer.  The Claimant requested both \ninitial and additional benefits.  In fact, he checked off all the boxes for every conceivable workers’ \ncompensation benefit under the law. \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on January 30, \n2024.  Per this form, the Respondents accepted this claim as a compensable medical only claim. \n On or about February 28, 2024, the Claimant requested a change of physician.  However, \nthe  Claimant  failed  to provide the Medical  Cost  Containment  Division  with the name  of  a \nphysician that he wished to see for his one-time change of physician request.  My review of the \nfile demonstrates that multiple emails were sent to the Claimant in this regard without a response.   \nAs a result, the file was returned to the Commission’s general files on July 9, 2024.   \n Since this time, the Claimant has not tried to pursue or otherwise resolve his claim, nor has \nhe made a bona fide request for a hearing since the filing for the Form AR-C.  \n Therefore, on October 18, 2024, the Respondents filed a Motion to Dismiss for Failure to \nProsecute, with the Commission, along with a Certificate of Service to the Claimant.  Hence, the \nRespondents mailed a copy of said motion to the Claimant via the United States Postal Service.  \nThe Commission sent a letter to the Claimant on October 22, 2024, informing Claimant of \nthe Respondents’ motion, and a deadline of twenty (20) days, for filing a written response.   Said \n\nROSARIO-H400450 \n \n3 \n \nletter was mailed to the Claimant by both first-class and certified mail. Per information received \nfrom the United States Postal Service, the letter notice mailed to the Claimant via certified mail \nwas left at the Claimant’s last known address listed with the Commission with an individual by \nthe name of Kyle  Watson, on November 5.   However, the letter sent by  first-class mail has not \nbeen returned to the Commission.   \n   Thus far, there has been no response from the Claimant.   \n Pursuant  to a  Hearing  Notice dated November  14,  2024,  the  Commission notified the \nparties  that  the  matter  had  been  set  for  a  hearing  on the Respondents’ motion  to dismiss.    Said \nhearing  was  scheduled  for December 19,  2024,  at  the  Arkansas  Workers’  Compensation \nCommission in Little Rock, Arkansas. \nSaid  notice  was  mailed  to  the  Claimant  by  both  first-class  and  certified  mail.   Per \ninformation received from the United States Postal Service, the letter notice mailed to the Claimant \nvia certified mail was left at the Claimant’s last known address listed with the Commission with \nan individual by the name of Kyle Watson, on November 18.  However, the letter sent by first-\nclass mail has not been returned to the Commission.  Based on the information provided by the \nPostal Service, I find the Claimant received proper notice of the hearing. \n Still, there was no response from the Claimant.   \nNevertheless,  the  hearing  was  held  as  scheduled.    The Claimant did  not appear at the \nhearing.  The Respondents’ counsel appeared at the hearing and argued that the Claimant has failed \nto prosecute his claim for workers’ compensation benefits.  More specifically, the Respondents’ \ncounsel noted that the Claimant has not taken any action to advance his claim since the filing of \nthe Form AR-C, which was done almost a year ago.  He further essentially noted that the Claimant \nhas not taken any affirmative action to resist his claim being dismissed.   \n\nROSARIO-H400450 \n \n4 \n \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 without prejudice on this claim for both \ninitial and additional workers’ compensation benefits.   \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(a)(4):  \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 limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, 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\nROSARIO-H400450 \n \n5 \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of the Form AR-C, almost a year ago; and nor has he resisted the motion \nfor dismissal of his workers’ compensation claim.   \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Moreover, I am convinced that the Claimant has abandoned this \nclaim.   \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 the \nprovisions of Ark. Code Ann.§11-9-702, and Commission Rule  099.13,  this  claim for workers’ \ncompensation benefits is hereby respectfully dismissed without prejudice to the refiling within the \nlimitation period specified under the Arkansas Workers’ Compensation Act (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. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ motion to dismiss this claim for lack of  prosecution  is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n\nROSARIO-H400450 \n \n6 \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’  compensation  benefits.  This  dismissal  is per Ark.  Code  Ann.  §11-9-702, and \nCommission  Rule  099.13, without  prejudice to  the  refiling  of  this claim  within the limitation \nperiod 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.: H400450 RAYMOND ROSARIO, EMPLOYEE CLAIMANT ALTER TRADING, INC., EMPLOYER RESPONDENT ARCH INDEMNITY INSURANCE, CO., /GALLAGHER BASSETT SERVICES, INC.,/INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED DECEMBER 20, 2024 Hearing held b...","fetched_at":"2026-05-19T22:45:54.328Z","links":{"html":"/opinions/alj-H400450-2024-12-20","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ROSARIO_RAYMOND_H400450_20241220.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}