CLAIM NO. E410686
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 7, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BILLY J. HUBBELL, Attorney at Law, Crossett, Arkansas.
Respondent represented by JAMES M. GARY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Claimant appeals from a decision of the Administrative Law Judge filed November 4, 1997 granting respondent’s motion to dismiss claimant’s claim for workers’ compensation benefits pursuant to Ark. Code Ann. § 11-9-702(a)(4) (1987). After reviewing respondent’s renewed Motion to Dismiss, claimant’s response thereto, and all other matters properly before the Commission, we find that respondent’s Motion to Dismiss this claim should be granted. [3] Respondent initially filed a motion to dismiss pursuant to Ark. Code Ann. § 11-9-702(a)(4) (1987) on November 28, 1995. In an order dated January 16, 1996, the Administrative Law Judge dismissed claimant’s claim for failure to request a hearing within the requisite time period. On January 29, 1996, claimant filed a motion for reconsideration which was granted by the Administrative Law Judge in an order filed February 7, 1997. Respondent lodged a timely Notice of Appeal of the Order granting reconsideration. In an Order filed April 14, 1997, the Full Commission remanded the claim back to the Administrative Law Judge since the Order granting reconsideration was not an appealable order. On October 24, 1997, with this claim properly being before the Administrative Law Judge, respondent filed a renewed Motion for Dismissal for claimant’s failure to request a hearing. In an Order dated November 4, 1997, the Administrative Law Judge granted the renewed Motion to Dismiss pursuant to Ark. Code Ann. § 11-9-702(a)(4) (1987). [4] For appeal, claimant argues that this claim should be governed by Act 796 of 1993 which amended the mandatory dismissal requirements set forth in Ark. Code Ann. § 11-9-702(a)(4) (1987) to a permissive dismissal. Clearly, this claim involves an injury date of September, 1992. The emergency clause of Act 796 expressly provides that the provisions of Act 796 “shall only apply to injuries which occur after July 1, 1993.” Since claimant’s injury occurred prior to the effective date of Act 796, Act 796 is not applicable to this claim. Therefore, Ark. Code Ann. § 11-9-702(a)(4) (1987) mandates that a claim shall be dismissed without prejudice “if, within six months after the filing of the claim for compensation, no hearing has been requested with respect to the claim . . .” Accordingly, we find that the order of the Administrative Law Judge dismissing this claim pursuant to Ark. Code Ann. § 11-9-702(a)(4) (1987) should be affirmed. [5] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[6] Commissioner Humphrey dissents.