{"id":"alj-H108753-2023-10-10","awcc_number":"H108753","decision_date":"2023-10-10","opinion_type":"alj","claimant_name":"Harold James","employer_name":"Eutaw Construction Inc","title":"HAROLD VS. EUTAW CONSTRUCTION INC. AWCC# H108753 OCTOBER 10, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:4"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/James_Harold_H108753_20231010.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"James_Harold_H108753_20231010.pdf","text_length":4950,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108753 \n \nHAROLD L. JAMES, EMPLOYEE  CLAIMANT \n \nEUTAW CONSTRUCTION INC., \nEMPLOYER                                                                                                RESPONDENT \n \nZURICH AMERICAN INSURANCE CO. \nINSURANCE COMPANY/TPA                                                                          RESPONDENT  \n \n \nOPINION FILED OCTOBER 10, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023 in Marion, \nCrittenden County, Arkansas. \n \nClaimant was  represented  by  Mr.  Scott  Hunter,  Jr.,  Attorney  at  Law, Jonesboro, \nArkansas. \n \nThe Respondents were represented by Mr. Michael Ryburn, Attorney at Law, Little Rock, \nArkansas. \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 October 6, 2023, in Marion, \nArkansas.    Claimant, was  represented  by Mr.  Scott  Hunter,  Jr.,  Attorney  at  Law, \nJonesboro,  Arkansas.  However, neither Claimant nor  his attorney  were present  at  the \nhearing. Respondents were represented at the hearing by Mr. Michael Ryburn, Attorney \nat  Law,  of Little  Rock,  Arkansas.    In  addition  to Respondent’s argument,  the  record \nconsists   of all   exhibits   properly   admitted   before   the   Commission   including the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on July 20, 2020, where he \npurportedly fractured his L4 vertebrae while pulling rebar. This incident allegedly occurred \nduring the course and scope of his employment. Since filing his Form C on October 17, \n\nJAMES H108753 \n \n 2 \n2022, this case has been inactive until Respondents filed a Motion to Dismiss due to the \nlack of prosecution. A hearing was held on October 6, 2023, in Marion, Arkansas on the \nMotion to Dismiss. As previously stated, neither the Claimant’s attorney nor the Claimant \nwere present for the hearing. The Claimant’s attorney waived his appearance. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. 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 without prejudice. \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\nJAMES H108753 \n \n 3 \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 After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should \nbe granted. \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. H108753 HAROLD L. JAMES, EMPLOYEE CLAIMANT EUTAW CONSTRUCTION INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE CO. INSURANCE COMPANY/TPA RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023 in ...","fetched_at":"2026-05-19T23:01:24.128Z","links":{"html":"/opinions/alj-H108753-2023-10-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/James_Harold_H108753_20231010.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}