{"id":"alj-H204175-2024-10-30","awcc_number":"H204175","decision_date":"2024-10-30","opinion_type":"alj","claimant_name":"Opal Russell","employer_name":"St. Bernards Hospital, Inc","title":"RUSSELL VS. ST. BERNARDS HOSPITAL, INC. AWCC# H204175 October 30, 2024","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:4"],"injury_keywords":["knee","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20241030.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Russell_Opal_H204175_20241030.pdf","text_length":8654,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204175 \n \nOPAL M. RUSSELL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nST. BERNARDS HOSPITAL, INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED OCTOBER 30, 2024 \n \nHearing conducted on Friday, October 11,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Ms. Opal Russell, Pro Se, of Jonesboro, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable S. Shane Baker, Jonesboro, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on September 8, 2023, in Jonesboro, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a  certified  nursing  assistant.  The \ndate  for  Claimant’s  alleged  injury  was  on  February  8,  2022.  She  reported  her  injury  to \nRespondent/Employer  on February 9,  2022. Respondents  admitted  no  exhibits  into  evidence. \nNevertheless,  admitted  into  evidence  was  blue-backed Form  AR-C, Form  AR-1,  Form  AR-2,  a \ncopy of certified return receipt returned to the Commission on August 29, 2024, a copy of certified \nreturn receipt returned to the Commission on August 12, 2024,  the September 8, 2023 Motion to \n\nRUSSELL, AWCC No. H204175 \n \n2 \n \nDismiss  hearing  transcript,  Motion  to  Dismiss  Opinion  dated  September  11,  2023, and  copy  of \nhearing notice, as discussed infra. \nThe record reflects on June 8, 2022, a Form AR-C was filed with the Commission, by then-\nattorney Jim Burton, purporting that Claimant injured her right knee and is seeking benefits. On \nJune 9, 2022, a Form AR-1 was filed with the Commission purporting that Claimant injured herself \nwhen she and two co-workers were attempting to lift a resident from the floor when her right knee \ntwisted  causing  pain. Also  on June 9,  2022,  a  Form  AR-2  was  filed by  Respondents  accepting \ncompensability of the injury. On June 30, 2023, Respondents filed a Motion to Dismiss claiming \na lack of prosecution by the Claimant. A hearing was held on September 8, 2023.  \nThe Claimant, on the date of the hearing, was represented by Attorney Jim Burton and the \nRespondents were represented by Attorney Justin Parkey, who filled in for Attorney Shane Baker. \nClaimant’s attorney stated, on record, that he has not heard from his client regarding this notice \nand hasn’t heard anything about the status of her treatment. But assured the Commission that he \nwill make a diligent effort to locate the Claimant. Claimant’s counsel also admitted that he was \nintending to file a Motion to Withdraw in this matter. I filed an Opinion in this matter on September \n11, 2023, granting Respondent’s Motion to Dismiss. On March 20, 2024, Claimant’s counsel filed \na Motion to Withdraw as Counsel. I granted Claimant’s counsel Motion on March 25, 2024. But \ninstead of foreclosing Claimant’s opportunity to argue her claim, I granted her, in that Opinion, \nthirty-five days to enter her preliminary notice and questionnaires. Otherwise, I would entertain \nanother  Motion  to  Dismiss  from  Respondents.  The  Claimant  has  failed  to  submit  the  required \ndocuments.  \nThe Respondents next filed a Motion to Dismiss on July 15, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \n\nRUSSELL, AWCC No. H204175 \n \n3 \n \nof the Motion to Dismiss from my office on July 22, 2024, to her last known address. The certified \nmotion notice was unclaimed by Claimant and returned to the Commission on August 12, 2024. \nAlso,  the motion notice was sent  regular  U.S.  Mail and was  not  returned  to  the  Commission. \nClaimant did not respond to the notice in writing as required. Thus, in accordance with applicable \nArkansas law, the Claimant was mailed due and proper legal notice of Respondents’ Motion to \nDismiss hearing date at her current address of record via the United States Postal Service (USPS), \nFirst Class Certified Mail, Return Receipt Requested, and regular First-Class Mail, on August 23, \n2024. The certified notice was claimed August 29, 2024, but the regular First-Class mail hearing \nnotice  was returned on  August  29,  2024.  The  hearing  took  place  on  September  13,  2024.  As \nmentioned before, the Claimant did not show up to the hearing. \n The evidence reflects that Claimant’s injury occurred on February 8, 2022, where she \npurportedly injured her right knee picking up a resident off the floor after having several falls back-\nto-back.  This  incident  allegedly  occurred  during  the  course  and  scope  of  her  employment. \nClaimant  has  not  contacted  her  attorney  with  any  updates  or  statuses  concerning  her  claim. \nClaimant’s attorney expressed  his  desire  to  file  a  motion  for  withdrawal  for  the  lack  of \ncommunication.  Since  filing  the  Form  C  on  June  8,  2022,  this  case  has  been  inactive  until \nRespondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of  prosecution.  A  hearing  was  held  on \nSeptember 8, 2023, in Jonesboro, Arkansas on the Motion to Dismiss. As previously stated, the \nClaimant did 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 Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nRUSSELL, AWCC No. H204175 \n \n4 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the October 11, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \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 \npreponderance of the evidence that dismissal should be granted. The standard “preponderance of \nthe evidence” means the evidence having greater weight or convincing force.  Barre v. Hoffman, \n2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (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 \n\nRUSSELL, AWCC No. H204175 \n \n5 \n \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. \n After consideration of all the evidence, I find that Claimant and Respondents were given \nreasonable notice for the Motion to Dismiss hearing under Rule 13. I further find that Claimant \nhas abridged this rule. Thus, I find Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204175 OPAL M. RUSSELL, EMPLOYEE CLAIMANT ST. BERNARDS HOSPITAL, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED OCTOBER 30, 2024 Hearing conducted on Friday, October 11, 2024, before the Arkansas Workers’ Compe...","fetched_at":"2026-05-19T22:48:19.233Z","links":{"html":"/opinions/alj-H204175-2024-10-30","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20241030.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}