{"id":"alj-H207557-2023-10-26","awcc_number":"H207557","decision_date":"2023-10-26","opinion_type":"alj","claimant_name":"Kari Mogensen","employer_name":"Southern Glazers Wine & Spirit","title":"MOGENSEN VS. SOUTHERN GLAZERS WINE & SPIRIT AWCC# H207557 OCTOBER 26, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:4"],"injury_keywords":["knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Mogensen_Kari_H207557_20231026.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mogensen_Kari_H207557_20231026.pdf","text_length":5093,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207557 \n \nKARI MOGENSEN, EMPLOYEE  CLAIMANT \n \nSOUTHERN GLAZERS WINE & SPIRIT, \nEMPLOYER                                                                                                RESPONDENT \n \nTRUMBULL INSURANCE CO. \nINSURANCE COMPANY                                                                          RESPONDENT  \n \nTHE HARTFORD \nTHIRD PARTY ADMINISTRATOR                                                                          RESPONDENT \n \n \nOPINION FILED OCTOBER 26, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October  25,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant  was  represented  by  Ms.  Laura  Beth  York,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on August 14, 2023.  A hearing on the motion was conducted on October \n25, 2023, in Little Rock, Arkansas.  Claimant was represented by Ms. Laura Beth York \nwho waived her appearance and did not object to the dismissal without prejudice. The \nClaimant   herself   was   not   personally   present   at   the   hearing.   Respondents   were \nrepresented at the hearing by Mr. Jarrod Parrish who argued the motion.  In addition to \nRespondent’s argument,   the   record   consists   of Respondent’s   Exhibit  1   and the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n\nMOGENSEN H207557 \n \n \n2 \n The  evidence  reflects  that Claimant’s  injury  occurred  on August  5,  2022,  where \nshe  injured  her  right  knee  and  back  while  carrying  dehumidifier  buckets. This  incident \nallegedly occurred during the course and scope of her employment. Since filing her Form \nC on October 21, 2022, this case has been inactive until Respondents filed a Motion to \nDismiss due to the lack of prosecution. A hearing was held on October 25, 2023, in Little \nRock, Arkansas on the Motion to Dismiss. As previously stated, the Claimant’s attorney, \nLaura Beth York, waived her appearance and was not present 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 \n\nMOGENSEN H207557 \n \n \n3 \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 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 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 without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207557 KARI MOGENSEN, EMPLOYEE CLAIMANT SOUTHERN GLAZERS WINE & SPIRIT, EMPLOYER RESPONDENT TRUMBULL INSURANCE CO. INSURANCE COMPANY RESPONDENT THE HARTFORD THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 26, 2023 Hearing before Administrative L...","fetched_at":"2026-05-19T23:02:16.666Z","links":{"html":"/opinions/alj-H207557-2023-10-26","pdf":"https://labor.arkansas.gov/wp-content/uploads/Mogensen_Kari_H207557_20231026.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}