Lencola Robertson vs. Courtyard Gardens Healthrehab

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208097 LENCOLA ROBERTSON, EMPLOYEE CLAIMANT COURTYARD GARDENS HEALTHREHAB, EMPLOYER RESPONDENT WESCO INS. CO./AMTRUST NORTH AMERICA INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED OCTOBER 4, 2023 Hearing conducted on Tuesday, October 3, 2023, before the Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County, Arkansas. The claimant, Ms. Lencola Robertson, pro se, of Gurdon, Clark County, Arkansas, failed and/or refused to appear at the hearing. The respondents were represented by the Honorable William C. (Bill) Frye, Frye Law Firm, P.A., North Little Rock, Pulaski County, Arkansas. STATEMENT OF THE CASE A hearing was conducted on Tuesday, October 3, 2023, to determine whether this claim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 Lexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). The respondents filed a letter motion to dismiss with the Commission on August 9, 2023, requesting this claim be dismissed without prejudice for lack of prosecution. In accordance with applicable Arkansas law, the claimant was mailed due and proper legal notice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at her current addresses of record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt requested. Thereafter, the claimant failed and/or refused to respond to the respondents’ motion in any way,

Lencola Robertson, AWCC No. H208097 2 or to cause anyone to do so on her behalf. Moreover, the claimant failed and/or refused to appear at the scheduled hearing, or to cause anyone to do so on her behalf. The record herein consists of the hearing transcript and any and all exhibits contained therein and/or attached thereto, as well as the Commission’s entire file in this matter. DISCUSSION Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of the evidence introduced at the hearing and contained in the record conclusively reveals the claimant has failed and/or refused to prosecute her claim at this time. Therefore, after a thorough consideration of the facts, issues, the applicable law, and other relevant matters of record, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Commission has jurisdiction of this claim. 2. After having received due and legal notice of the respondents’ motion to dismiss, as well as due and legal notice of the subject hearing, the claimant failed and/or refused to respond to the motion in any way. Moreover, the claimant failed and/or refused to appear at the hearing, or to cause anyone to appear on her behalf. Therefore, she is deemed to have waived her appearance at the hearing, and to have waived objection to the respondents’ motion to dismiss without prejudice. 3. The claimant has to date failed and/or refused to prosecute her claim. In addition, the claimant has failed and/or refused to request a hearing within the last six (6) months. 4. Therefore, the respondents’ letter motion to dismiss without prejudice filed with the Commission on August 9, 2023, should be and hereby is GRANTED; and

Lencola Robertson, AWCC No. H208097 3 this claim is dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule 099.13. This opinion and order shall not be construed to prohibit the claimant, her attorney, any attorney she may retain in the future, or anyone else acting legally and on her behalf from refiling the claim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9- 702(a) and (b). The respondents shall pay the court reporter’s invoice within twenty (20) days of their receipt thereof. IT IS SO ORDERED. ______________________________ Mike Pickens Administrative Law Judge MP/mp