{"id":"alj-H010344-2024-07-31","awcc_number":"H010344","decision_date":"2024-07-31","opinion_type":"alj","claimant_name":"Magdelynn Sutton","employer_name":null,"title":"SUTTON VS. AMAZON.COM SVCS, LLC.AWCC# H010344July 31, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:2","denied:3"],"injury_keywords":["back","neck"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Sutton_Magdelynn_H010344_20240731.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sutton_Magdelynn_H010344_20240731.pdf","text_length":6460,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H010344 \n \nMAGDELYNN SUTTON,  \nEMPLOYEE  CLAIMANT \n \nAMAZON.COM SVCS, LLC., \nEMPLOYER/SELF INSURED                                                                           RESPONDENT \n \nAMERICAN ZURICH INS. CO., \nCARRIER/TPA                                                                                                     RESPONDENT \n \n \nOPINION FILED JULY 31, 2024 \n \nHearing before Administrative Law Judge Steven Porch on June 20, 2024, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant was represented by Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nThe Respondents were represented  by  Mr. Wade  H. Scofield  II,  Attorney  at  Law, Brentwood, \nTennessee. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non February 6, 2024. The Claimant worked as an associate for Respondent/Employer. Admitted \ninto evidence is Respondents’ Exhibit 1, Respondents’ Motion to Dismiss, consisting of 21 pages, \nand  Respondents’ Exhibit  2,  Claimant’s Questionnaire,  consisting  of 2 pages.  I  have  also  blue-\nbacked Forms AR-1, AR-2, and AR-C, as discussed infra. \nThe record reflects on December 14, 2020, a Form AR-C was filed by then-attorney, Laura \nBeth York, alleging injuries to her left and right hand, right leg, left and right knees, back, neck \nand other whole body due to tripping over a box. Claimant’s injury occurred November 26, 2020. \nRespondents  filed  a  Form  AR-2,  on  December  21,  2020,  accepting  the  claim  as  compensable. \nClaimant’s counsel on September 25, 2023, withdrew as counsel of record. Respondents sent \n\nSUTTON AWCC No. H010344 \n \n 2 \ncorrespondence to  Claimant  on  November  14,  2023, to settle  the  claim.  The  Claimant  did  not \nrespond to the letter, or any phone calls made by Respondents’ counsel.  \nThe Respondents next filed a Motion to Dismiss on February 6, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on February 7, 2024, to her last known address of \nrecord. The certified notice was claimed by Claimant on February 13, 2024. Likewise, the notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on May 20, 2024. The certified notice was claimed by \nthe Claimant on May 23, 2024. The hearing took place on June 20, 2024, and the Claimant did \nshow up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including Respondents’ Exhibit 1, correspondence \nand  pleadings,  consisting  of  21  pages, Respondents’ Exhibit 2, Questionnaire, consisting of 2 \npages, and the argument of both Claimant’s counsel and Respondents’ counsel, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All  parties  received reasonable notice  of  the June  20,  2024, Motion  to Dismiss \nhearing date. \n \n3. Respondents did not prove by a preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n\nSUTTON AWCC No. H010344 \n \n 3 \n \n4. The Motion to Dismiss should be, and hereby is, denied. \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \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 preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission. White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant or  any  other witness  but may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \n\nSUTTON AWCC No. H010344 \n \n 4 \nher claim prior to the hearing date. Nevertheless, I further find that Claimant has shown, by her \ntestimony that she wants her claim to continue forward and by securing legal counsel and having \nthat counsel present at the Motion to Dismiss hearing, a sincere desire to prosecute her claim. Thus, \nI find that the Respondents have not proven by the preponderance of the evidence that its’ motion \nshould be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H010344 MAGDELYNN SUTTON, EMPLOYEE CLAIMANT AMAZON.COM SVCS, LLC., EMPLOYER/SELF INSURED RESPONDENT AMERICAN ZURICH INS. CO., CARRIER/TPA RESPONDENT OPINION FILED JULY 31, 2024 Hearing before Administrative Law Judge Steven Porch on June 20, 2024, in L...","fetched_at":"2026-05-19T22:52:23.374Z","links":{"html":"/opinions/alj-H010344-2024-07-31","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Sutton_Magdelynn_H010344_20240731.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}