{"id":"alj-H407416-2025-08-27","awcc_number":"H407416","decision_date":"2025-08-27","opinion_type":"alj","claimant_name":"Carl Avery","employer_name":"Dump It Dumpster Rental LLC","title":"AVERY VS. DUMP IT DUMPSTER RENTAL LLC. AWCC# H407416 August 27, 2025","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:3"],"injury_keywords":["back","neck"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Avery_Carl_H407416_20250827.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Avery_Carl_H407416_20250827.pdf","text_length":6476,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407416 \n \nCARL E. AVERY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDUMP IT DUMPSTER RENTAL LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACCIDENT FUND INS. CO. of AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED AUGUST 27, 2025 \n \nHearing conducted on Wednesday, July 30, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Carl E. Avery, Pro Se, of Stuttgart, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May  14, 2025.    A  hearing  on  the  motion  was  conducted  on July 30,  2025,  in Little  Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a driver. The date for Claimant’s \nalleged  injury  was  on September 3,  2024. He  reported  his injury  to  Respondent/Employer on \nOctober 30, 2024. Respondents admitted into the record Respondents’ Exhibit 1, pleadings, and \ncorrespondence, consisting of 8 pages. The Commission has admitted into evidence Commission \nEx. 1, pleadings, correspondence,  and  U.S.  Mail  return  receipts,  consisting  of 10 pages, as \ndiscussed infra. \n\nAVERY, AWCC No. H407416 \n \n2 \n \nThe record reflects on November 13, 2024, a Form AR-C was filed with the Commission \nby  Claimant’s  then-counsel, Mark  Peoples, purporting  that  Claimant sustained  work-related \ninjuries to his back and neck. On November 14, 2024, a Form AR-1 was filed with the Commission \npurporting  that  Claimant pulled  back  muscles  changing  a  tire. On November  25,  2024,  a  Form \nAR-2  was  filed by  Respondents neither  accepting  nor  denying  compensability. However, \nRespondents’ counsel confirms during the motion to dismiss hearing that compensability was \naccepted, and benefits were provided. Claimant was released from treatment with no restrictions \nin  January  2025. Claimant next filed  for  a  change  of  physician  on January 3,  2025. Claimant’s \nthen-counsel withdrew that request for a change  of physician on March 17, 2025. On that same \nday, Claimant’s counsel filed a motion to withdraw as counsel. The Full Commission granted the \nmotion on April 23, 2025.  \nOn May 14,  2025, Respondents’ counsel filed  a  Motion  to  Dismiss due  to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on May 19, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to his last known address. The certified motion notice \nwas not claimed by Claimant as noted on the June 3, 2025, return receipt. This notice sent regular \nU.S.  Mail  did  not  return  to  the  Commission. The  Claimant  did not respond  to  the  Motion,  in \nwriting, 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 his 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 24, 2025. The certified notice was not claimed \nas noted by the July 10, 2025, return receipt. The hearing notice sent regular First-Class was not \nreturned to the Commission. The hearing took place on July 30, 2025. And as mentioned before, \nthe Claimant did not show up to the hearing. \n\nAVERY, AWCC No. H407416 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the July 30,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his  claim  under 11  C.A.R. § 25-110  (formerly AWCC  Rule \n099.13.) \n4.  \n5. The Respondents’ Motion to Dismiss should be granted. \n \n6. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. § 25-110 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).   \nConsistent with 11 C.A.R. § 25-110, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nnot claimed by Claimant, per the return postal notice bearing the July 10, 2025, date. However, \nthe hearing notice sent regular First-Class mail was not returned to the Commission. The Claimant \n\nAVERY, AWCC No. H407416 \n \n4 \n \nis responsible for updating his address with the Commission. Thus, I find by the preponderance of \nthe evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. § 25-110 allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of prosecution. The Claimant filed his Form AR-\nC on November 13, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim by failing \nto request a hearing. 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 hereby granted, and Claimant’s 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 WCC NO. H407416 CARL E. AVERY, EMPLOYEE CLAIMANT DUMP IT DUMPSTER RENTAL LLC., EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. of AMERICA, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 27, 2025 Hearing conducted on Wednesday, July 30, 2025, before the Arkansas Workers’ Comp...","fetched_at":"2026-05-19T22:38:04.468Z","links":{"html":"/opinions/alj-H407416-2025-08-27","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Avery_Carl_H407416_20250827.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}