Cruz Mendez vs. Whistle Lumber Co., Inc

1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304447 (inclusive of H304518) CRUZ A. MENDEZ, A/KA/ ARCHIBALDO GUZMAN, EMPLOYEE CLAIMANT WHISTLE LUMBER CO., INC., EMPLOYER RESPONDENT WESCO INS. CO./AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED NOVEMBER 26, 2024 Hearing conducted on Thursday, November 21, 2024, before the Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hope, Hempstead County, Arkansas. The claimant, Mr. Cruz A. Mendez, a/k/a Archibaldo Guzman, pro se, of Hope, Hempstead County, Arkansas, failed and/or refused to appear at the hearing. The respondent was represented by the Honorable William C. “Bill” Frye, Frye Law Firm, North Little Rock, Pulaski County, Arkansas. STATEMENT OF THE CASE A hearing was conducted on Thursday, November 21, 2024, to determine whether this claim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). The claimant also is known as and goes by the name of Archibaldo Guzman, and a Form AR- 2 was filed for this same claimant arising out of the same alleged injury and injury date in AWCC No. H304518. Consequently, the Commission’s Compliance Division consolidated the single claimant and two (2) claim numbers into a single claim number, AWCC No. H304447. (Hearing Transcript; Respondents’ Exhibits 1-4).

Cruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) 2 The claimant herein previously was represented by counsel, Mark Alan Peoples. By Full Commission order filed August 7, 2024, the Full Commission granted Mr. Peoples’s request to withdraw as the claimant’s counsel. Soon thereafter, by a letter motion filed with the Commission on August 14, 2024 (MTD), the respondents requested this claim be dismissed for lack of prosecution pursuant to the aforementioned statute and Commission rule. (T.; Respondents’ Exhibits 1-4). In compliance with the applicable law the claimant was provided due and legal notice of the respondents’ MTD as well as the date, time, and location of the subject hearing. The claimant did not respond in writing to the respondents’ motion in any way, and he failed and/or refused to appear at the subject hearing. The record herein consists of the hearing transcript and any and all exhibits contained therein and attached thereto. DISCUSSION Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), 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 either request a hearing within the last six (6) months, and he has taken no steps whatsoever to prosecute this claim. Therefore, after a thorough consideration of the facts, issues, the applicable law, the representations of credible counsel, and other relevant matters of record, I hereby make the following:

Cruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) 3 FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Commission has jurisdiction of this claim. 2. After having been mailed due and legal notice of the respondents’ letter MTD without prejudice filed with the Commission on August 14, 2024, as well as notice of the date, time, and place of the subject hearing, the claimant failed and/or refused to respond in any way to the respondents’ letter MTD and failed and/or refused to appear at the hearing. Therefore, the claimant is deemed to have waived his right to a hearing on the respondents’ MTD. 3. The claimant has not requested a hearing within the last six (6) months, and he has failed and/or refused to prosecute this claim. 4. The respondents’ letter MTD without prejudice filed August 14, 2024, should be and hereby is GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and Commission Rule 099.13. This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may retain in the future, or anyone acting legally and on his 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). If they have not already done so, the respondents hereby are ordered to 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

Cruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) 4