{"id":"alj-H204175-2023-09-11","awcc_number":"H204175","decision_date":"2023-09-11","opinion_type":"alj","claimant_name":"Opal Russell","employer_name":"St. Bernard Hospital Inc","title":"RUSSELL VS. ST. BERNARD HOSPITAL INC. AWCC# H204175 SEPTEMBER 11, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:4"],"injury_keywords":["knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20230911.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Russell_Opal_H204175_20230911.pdf","text_length":5096,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204175 \n \nOPAL M. RUSSELL, EMPLOYEE  CLAIMANT \n \nST. BERNARD HOSPITAL INC., \nEMPLOYER/ INSURANCE CARRIER                                                                        RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                   RESPONDENT  \n \n \n \nOPINION FILED SEPTEMBER 11, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  September  8,  2023 in \nJonesboro, Craighead County, Arkansas. \n \nClaimant was represented by Mr. Jim R. Burton, Attorney at Law, Jonesboro, Arkansas. \n \nThe Respondents were represented by Mr. S. Shane Baker, Attorney at Law, Jonesboro, \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  September  8,  2023,  in \nJonesboro, Arkansas.  Claimant, was represented by Mr. Jim R. Burton, Attorney at Law. \nHowever,   Claimant   herself   was   not   present   at   the   hearing.   Respondents   were \nrepresented  at  the  hearing  by  Mr.  S.  Shane  Baker,  Attorney  at  Law,  of  Jonesboro, \nArkansas.      In   addition   to   Respondent’s argument,   the   record   consists   of   the \nCommission’s file which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on February 8, 2022, where \nshe  purportedly  injured  her  right  knee  picking  up  a  resident  off  the  floor  after  having \nseveral falls back to back. This incident allegedly occurred during the course and scope \nof her employment. Claimant has not contacted her attorney with any updates or statuses \n\nRUSSELL H204175 \n \n \n2 \nconcerning her claim. Claimants expressed his desire to file a motion for withdrawal for \nthe lack of communication. Since filing the Form C on June 8, 2022, this case has been \ninactive  until  Respondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of  prosecution.  A \nhearing  was  held  on  September  8,  2023,  in  Jonesboro,  Arkansas on  the  Motion  to \nDismiss. As previously stated, the Claimant’s attorney appeared but the Claimant herself \ndid not appear for the hearing. \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).   \n\nRUSSELL H204175 \n \n \n3 \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 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. H204175 OPAL M. RUSSELL, EMPLOYEE CLAIMANT ST. BERNARD HOSPITAL INC., EMPLOYER/ INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 11, 2023 Hearing before Administrative Law Judge Steven Porc...","fetched_at":"2026-05-19T23:02:39.680Z","links":{"html":"/opinions/alj-H204175-2023-09-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20230911.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}