1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404671 MICHAEL J. TOSKA, EMPLOYEE CLAIMANT CITY OF HOT SPRINGS, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM/ ARK. MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MAY 12, 2025 Hearing conducted on Friday, May 9, 2025, before the Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, Garland County, Arkansas. The claimant, Mr. Michael J. Toska, pro se, of Hot Springs, Garland County, Arkansas, failed and/or refused to appear at the hearing. The respondent was represented by the Honorable Mary K. Edwards, Ark. Municipal League, Little Rock, Pulaski County, Arkansas. STATEMENT OF THE CASE A hearing was conducted on Friday, May 9, 2025, to determine whether this claim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis Replacement) and Commission Rule 099.13 (2025 Lexis Replacement). The claimant herein previously was represented by counsel, Mark Alan Peoples. By Full Commission order filed October 20, 2024, the Full Commission granted Mr. Peoples’s request to withdraw as the claimant’s counsel. On March 6, 2025, the respondents filed a motion to dismiss for failure to prosecute (MTD) with the Commission. (Respondent’s Exhibit 1 at 2-3).
Michael J. Toska, AWCC No. H404302 2 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, which he received on March 11, 2025. (Commission Exhibit 1; RX1 at 4-7). The claimant did not respond 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) (2025 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’ MTD. 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: 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’ MTD without prejudice filed with the Commission on March 6, 2025, 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’ MTD, and he 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.
Michael J. Toska, AWCC No. H404302 3 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’ MTD without prejudice filed March 6, 2025, 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 opinion 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
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Source: https://www.labor.arkansas.gov/wp-content/uploads/TOSKA_MICHAEL_H404671_20250512.pdf. Published by the Arkansas Department of Labor and Licensing, Workers' Compensation Commission. Republished here as a public reference; consult the original PDF for citation.