{"id":"alj-H208119-2023-06-12","awcc_number":"H208119","decision_date":"2023-06-12","opinion_type":"alj","claimant_name":"Austin Rushing","employer_name":"Williams Mechanical Srvs Inc","title":"RUSHING VS. WILLIAMS MECHANICAL SRVS INC. AWCC# H208119 JUNE 12, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:4"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/RUSHING_AUSTIN_H208119_06122023.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSHING_AUSTIN_H208119_06122023.pdf","text_length":4748,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208119 \n \nAUSTIN RUSHING, EMPLOYEE  CLAIMANT \n \nWILLIAMS MECHANICAL SRVS INC., \nEMPLOYER                                                                                                RESPONDENT \n \nNATIONAL AMERICAN INSURANCE CO. \nINSURANCE CARRIER                                                                            RESPONDENT \n \nSEDGWICK CLAIMS CLAIMS MANAGEMENT SERVICES,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED JUNE 12, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. Jason M. 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  June 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Mr.  Jason  M.  Ryburn,  Attorney  at  Law,  of  Little  Rock, \nArkansas. In addition to Respondent’s argument, the record consists of the Commission’s \nfile, which has been incorporated herein in its entirety by reference, including all exhibits \nproperly admitted before the Commission. \n The evidence reflects that Claimant’s injury occurred on August 19, 2021, where \nhe purportedly injured his head. This incident allegedly occurred when another worker left \na hammer on top of a ladder that fell striking Claimant in the head causing a laceration. \n\nRUSHING H208119 \n \n \n2 \nA hearing was held on June 9, 2023, in Little Rock, Arkansas, on the Motion to Dismiss. \nAnd as previously stated, the Claimant 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 \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. \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“preponderance of the evidence” means the evidence having greater weight or convincing \n\nRUSHING H208119 \n \n \n3 \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,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind 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 without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208119 AUSTIN RUSHING, EMPLOYEE CLAIMANT WILLIAMS MECHANICAL SRVS INC., EMPLOYER RESPONDENT NATIONAL AMERICAN INSURANCE CO. INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS CLAIMS MANAGEMENT SERVICES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 12,...","fetched_at":"2026-05-19T23:06:19.326Z","links":{"html":"/opinions/alj-H208119-2023-06-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/RUSHING_AUSTIN_H208119_06122023.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}