{"id":"alj-H300515-2023-08-09","awcc_number":"H300515","decision_date":"2023-08-09","opinion_type":"alj","claimant_name":"Lillie Neal","employer_name":"Edwards Food Giant","title":"NEAL VS. EDWARDS FOOD GIANT AWCC# H300515 AUGUST 9, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:4"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Neal_Lillie_H300515_20230809.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Neal_Lillie_H300515_20230809.pdf","text_length":5460,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300515 \n \nLILLIE K. NEAL, EMPLOYEE  CLAIMANT \n \nEDWARDS FOOD GIANT, \nEMPLOYER                                                                                                RESPONDENT  \n \nRETAILERS CASUALTY INSURANCE, \nINSURANCE COMPANY                                                                          RESPONDENT \n \nSUMMIT CONSULTING, LLC., \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED AUGUST 9, 2023 \n \nHearing before Administrative Law Judge Steven Porch on August 9, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant is representing herself, Pro Se, Little Rock, Arkansas. \n \nThe Respondents were represented by Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  was  scheduled  for  a  full-hearing  today,  August  9,  2023,  10am. \nClaimant  did  not  appear  for  the  hearing.  Notices  were  sent  to  Claimant certified  return \nreceipt requested and regular first class mail. The Claimant did not sign for the certified \nletter. However, the first class letter containing the same hearing notice was not returned. \nI further requested my assistant, Melanie Miller, to call the Claimant on the date of the \nhearing to ascertain her whereabouts. My assistant was not able to reach the Claimant. \nMy  assistant  further  checked  with  security  downstairs  to  see  whether  she  signed  in  to \nenter the building. The Claimant was not in the building.  \nI opened the hearing at 10:35am, 35 minutes after the time the full-hearing was \nscheduled to begin. I asked Respondent’s counsel how would he like to proceed and he \n\nNEAL H300515 \n \n \n2 \nmade an oral Rule 13 motion for dismissal for lack of prosecution. I have  accepted this \nmotion and entered into evidence the Commission’s file by reference. I also entered the \nPrehearing Order filed on June 26, 2023, as Commission’s Exhibit 1.  \n The evidence reflects that Claimant’s injury occurred on October 21, 2022, where \nshe  purportedly  injured  her  head.  This  incident  allegedly  occurred  when  Claimant  was \nattempting to sit down in her employer’s breakroom when she fell backwords out of the \nchair injuring her head. Claimant was not clocked in at the time of the incident but was \nwaiting for her shift to start. This is a totally controverted claim.  \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 full-hearing that was later \nconverted  to  a  Motion  to  Dismiss  hearing  under  AWCC  R.  099.13,  due  to \nClaimant’s failure to appear at the full-hearing. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her 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 \n\nNEAL H300515 \n \n \n3 \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 \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 without prejudice. \n \n \n \n\nNEAL H300515 \n \n \n4 \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. H300515 LILLIE K. NEAL, EMPLOYEE CLAIMANT EDWARDS FOOD GIANT, EMPLOYER RESPONDENT RETAILERS CASUALTY INSURANCE, INSURANCE COMPANY RESPONDENT SUMMIT CONSULTING, LLC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 9, 2023 Hearing before Administra...","fetched_at":"2026-05-19T23:03:46.540Z","links":{"html":"/opinions/alj-H300515-2023-08-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Neal_Lillie_H300515_20230809.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}