BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JOHN HARRIS, EMPLOYEE DOLLAR TREE STORES, INC., EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JOHN HARRIS, EMPLOYEE DOLLAR TREE STORES, INC., EMPLOYER ARCH INSURANCE CO./ SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE FILED AUGUST 17, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL on August 11, 2015, in Little Rock, Pulaski County, Arkansas. The claimant is represented by HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas who waived appearance at the hearing. The respondents were represented at the hearing by HONORABLE ZACHARY F. RYBURN, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE This matter comes on for consideration of the respondents motion to dismiss for failure to prosecute. A hearing was conducted in this matter on August 11, 2015, in Little Rock, Arkansas. The respondents were represented by Attorney Zachary Ryburn. The record consists of the transcript of the August 11, 2015, hearing and the exhibits contained therein. I find that the respondents motion to dismiss should be granted. DISCUSSION On or about August 17, 2014, the Commission first received a claim for benefits (Form AR-C) filed by Mr. Harris. That form had boxes checked for both initial and

2 JOHN HARRIS - G additional benefits. (Comm. Exh. 1 p. 34) However, the respondents filed a Commission Form 2 on September 2, 2014, stating that the claim was denied in its entirety. (Comm. Exh. 1 p. 31) On November 17, 2014, attorney Phillip Wilson filed another Form AR-C signed by Mr. Harris, and this form likewise had boxes checked for both initial and additional benefits. (Comm. Exh. 1 p. 23) There is no indication in the hearing record that the respondents ever paid any benefits on this claim either before or after the filing of either Form AR-C. In light of the controversion explained on the Form 2 filed on September 2, 2014, I find that the greater weight of the evidence establishes that both Form C s filed in this case were in fact claims for initial benefits and not claims for additional benefits. There was no evidence presented at the hearing indicating that either the claimant or the claimant s attorney ever requested a hearing on the claim for benefits or took any other action to prosecute this claim after November 17, Attorney Michael Ryburn filed a motion to dismiss this claim on April 14, (Comm. Exh. 1 p. 14) Attorney Phillip Wilson electronically filed at the Commission on June 11, 2015, a letter on behalf of his client advising that Mr. Wilson and Mr. Harris do not object

3 JOHN HARRIS - G to the motion to dismiss, and that Mr. Wilson did not plan to attend a hearing on the motion to dismiss. (Comm. Exh. 1 p. 5) Mr. Ryburn s motion sought dismissal pursuant to Commission Rule , which states in relevant part: Upon meritorious application to the Commission from either party in an action pending before the Commission, requesting that the claim be dismissed for want of prosecution, the Commission may, upon reasonable notice to all parties, enter an order dismissing the claim for want of prosecution. However, since neither the claimant nor his attorney ever requested a hearing on the claim for benefits, I find that the dismissal request is instead properly governed by the procedural requirements of Arkansas Code Annotated section (a)(4), rather than by Commission Rule See Dillard v. Benton County Sheriff s Office, 87 Ark. App. 379, 192 S.W.3d 287 (2004). Arkansas Code Annotated section (a)(4) provides: (a)(4) If within six (6) months after the filing of a claim for compensation no bona fide request for a hearing has been made with respect to the claim, the claim may, upon motion and after hearing, be dismissed without prejudice to the refiling of the claim within limitation periods specified in subdivisions (a)(1)-(3) of this section. 1 1 For the sake of completeness, I note that if the respondents did in fact pay any compensation to Mr. Harris at any point before Mr. Wilson filed the second AR-C in November of

4 JOHN HARRIS - G In the present case, as indicated above, a motion to dismiss was filed in April of 2015, and the mandatory hearing on the motion to dismiss was conducted on August 11, By that date, more than six months had passed since Mr. Harris had filed his initial claim for benefits, and more than six months had also passed at the time of the hearing in August of 2015 since Mr. Wilson had filed the second Form AR-C in November of To date, neither Mr. Harris nor Mr. Wilson has ever filed a request for a hearing on the claim. Mr. Wilson waived his appearance at the hearing conducted on August 11, 2015, and as discussed above, Mr. Wilson indicated in that same letter filed in June of 2015, that his client had no objection to the motion to dismiss. (Comm. Exh. 1 p. 5) After considering the respondents motion to dismiss, the claimant s lack of objection thereto, and all other matters properly before the Commission, I find that the respondents motion to dismiss should be, and hereby is, granted. This dismissal shall be without prejudice to 2014, then this dismissal request is instead governed by the provisions of Arkansas Code Annotated section (d); however, for all practical purposes relevant to this record, that provision is essentially identical to Arkansas Code Annotated section (a)(4).

5 JOHN HARRIS - G refiling within the applicable limitations period specified in Arkansas Code Annotated section ORDER For the reasons discussed herein, this claim is hereby dismissed. This dismissal shall be without prejudice to refiling within the applicable limitations period. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge