{"id":"alj-H008491-2023-05-11","awcc_number":"H008491","decision_date":"2023-05-11","opinion_type":"alj","claimant_name":"Gregory Williams","employer_name":"Mcilveene, Inc. D/b/a American Wholesale Glass","title":"WILLIAMS VS. MCILVEENE, INC. d/b/a AMERICAN WHOLESALE GLASS AWCC# H008491 MAY 11, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:4"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_GREGORY_H008491_20230511.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_GREGORY_H008491_20230511.pdf","text_length":5581,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H008491 \n \nGREGORY WILLIAMS, EMPLOYEE   CLAIMANT \n \nMCILVEENE, INC. d/b/a  \nAMERICAN WHOLESALE GLASS, \nEMPLOYER                                                                                                 RESPONDENT  \n \nSTATE AUTOMOBILE MUTUAL \nINSURANCE COMPANY, INSURANCE CARRIER                                 RESPONDENT  \n \n \nOPINION FILED MAY 11, 2023 \n \nHearing before Administrative Law Judge  Steven Porch on May 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. William Roy Sanders, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear.  Respondents were represented at \nthe hearing by  Mr. William Roy Sanders, Attorney at Law, of Little Rock, Arkansas.  In \naddition to Respondent’s argument, the record consists of the Commission’s file–which \nhas been incorporated herein in its entirety by reference. \n The evidence reflects that per the First Report of Injury or Illness filed on February \n26, 2020, Claimant purportedly injured his  right knee/leg and other whole body at work \non October 24, 2020 when a board broke while he was standing on it.  According to Form \nAR-2  that  was  filed  on  November  6,  2020,  Respondents  accepted  this  injury  as \ncompensable and paid medical and indemnity benefits pursuant thereto.  At some point \n\nWILLIAMS – H008491 \n \n \n2 \nsoon after, Claimant hired legal counsel Laura Beth York at Rainwater, Holt and Sexton \nfirm,  who  filed  Form  AR-C,  asking  for  a  full  range  of  benefits on March 29,  2021.  \nHowever,  on  June  30,  2021,  Ms.  York  filed  a  Motion  to  Withdraw  from  this  case.  This \nrequest was granted. Since then, this case has been inactive until Respondents filed a \nMotion to Dismiss due to the lack of prosecution. A hearing was set for May 9, 2023, in \nLittle Rock, Arkansas on the Motion to Dismiss. The hearing took place as scheduled. \nAt the hearing and as previously stated, the Claimant did not appear and testify. \nRespondents argued for dismissal under Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission, and having had an opportunity to hear the sworn testimony of the Claimant, \nI  hereby  make  the following findings of fact and  conclusions  of  law  in accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n \n \n\nWILLIAMS – H008491 \n \n \n3 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A  claimant’s  testimony  is  never  considered  uncontroverted. Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n At the hearing, it was argued that Claimant refused to show up to two previously \nscheduled depositions and has not engaged in the prosecution of this matter. I find this \nargument  has  merit. I  find  nothing  in  the  file  demonstrating  Claimant’s  willingness  to \nprosecute this matter. \n\nWILLIAMS – H008491 \n \n \n4 \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice of the Motion to Dismiss hearing under Rule 13. I further find that \nClaimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should be \ngranted without prejudice. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008491 GREGORY WILLIAMS, EMPLOYEE CLAIMANT MCILVEENE, INC. d/b/a AMERICAN WHOLESALE GLASS, EMPLOYER RESPONDENT STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED MAY 11, 2023 Hearing before Administrative Law Judge Steven...","fetched_at":"2026-05-19T23:07:34.662Z","links":{"html":"/opinions/alj-H008491-2023-05-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_GREGORY_H008491_20230511.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}