{"id":"alj-H301091-2023-10-12","awcc_number":"H301091","decision_date":"2023-10-12","opinion_type":"alj","claimant_name":"Diana Watkins","employer_name":"Smith House, Inc","title":"WATKINS VS. SMITH HOUSE, INC. AWCC# H301091 OCTOBER 12, 2023","outcome":"dismissed","outcome_keywords":["dismissed:3","denied:2"],"injury_keywords":["ankle","fracture","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Diana_H301091_20231012.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Watkins_Diana_H301091_20231012.pdf","text_length":9019,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301091 \n \n \nDIANA L. WATKINS, EMPLOYEE CLAIMANT \n \nSMITH HOUSE, INC., EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  6, \n2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se. \n \nRespondents  represented  by  Mr.  William  C.  Frye,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on  October  6,  2023,  in \nJonesboro, Arkansas.  Claimant, who is pro se, appeared in person and testified.  \nRespondents were represented at the hearing by Mr. William C. Frye, Attorney at \nLaw,  of  North Little  Rock,  Arkansas.    In  addition  to  Claimant’s  testimony,  the \nrecord  consists  of  (1) the  Commission’s  file–which,  without  objection,  has  been \nincorporated herein  in its  entirety  by  reference;  and  Respondents’ Exhibit 1,  the \ncomplaint filed on January 6, 2023, in Diana Watkins v. Houseworth Hotels, d/b/a \nComfort Inn of Blytheville and Smith-House, Inc., d/b/a Comfort Inn of Blytheville, \nMississippi  County  Circuit  Court  No.  4BCV-23-4,  consisting  of  five  numbered \npages. \n\nWATKINS – H301091 \n \n2 \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nFebruary  21,  2023  ,  Claimant  purportedly  sustained  injuries  to  her  left  foot  and \nankle on February 19, 2022, when she fell on a snow and ice-covered parking lot \nat  work.    According  to  the  Form  AR-2  that  was  filed  on  February  22,  2023, \nRespondents  controverted  the  claim  in  its  entirety.    On February 16,  2023  , \nClaimant  (through then-counsel  Kevin Graham)  filed a Form AR-C.  Therein, he \nclarified  that  the  date  of  the  injury  was  February  22,  2021,  and  alleged  the \nfollowing: \nDiana Watkins was on the Comfort Inn Parking lot and had gone to \nher  vehicle  to  retrieve  a  personal  item.    There  had  been  three  (3) \nrecord snow and ice storms.  As she exited her vehicle, she took a \nstep  on  her  left  foot  and  she fell  due  to  the  snow  and  ice.  \nEmployee sustained a left ankle fracture requiring surgery. \n \nNo  hearing  request  accompanied  this  filing.    Respondents’  counsel  made  his \nentry  of  appearance  before  the  Commission  on  February  23,  2023;  and  in  an \nemail  on  March  8,  2023,  reiterated  that  the  claim  was  being  controverted  in  its \nentirety. \n This alleged fall was also the subject of a civil action.  On January 6, 2023, \nClaimant  through  Graham  filed  a  lawsuit  against  Respondent  employee  and \nother  parties  in  Mississippi  County  Circuit  Court.    Claimant  later  dismissed  this \naction  and  terminated  Graham’s  services.    Following  this,  on  May  1,  2023,  he \nmoved to withdraw from his representation of her in the instant claim as well.  In \nan  order  entered  on  May  11,  2023,  the  Full  Commission  granted  the  motion \nunder AWCC Advisory 2003-2. \n\nWATKINS – H301091 \n \n3 \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nAugust 9, 2023, when Respondents filed the instant Motion to Dismiss.  Therein, \nthey  argued  that  dismissal  was  warranted  under  AWCC  R.  099.13 because “no \naction has been taken in this matter since the Claimant filed the AR-C . . . .”  The \nfile  was  assigned  to  me  on  August  10,  2023;  and  on  that  same  day,  my  office \nwrote  Claimant,  asking  her  to  respond  to  the  motion  within  20  days.    The  letter \nwas sent to her by first-class and certified mail.  Claimant signed for the certified \nletter on August 15, 2023; and the first-class letter was not returned.  Regardless, \nno response was forthcoming. \n On  August  31,  2023,  I  scheduled  this  hearing  for  October  6,  2023,  at \n10:30  a.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The  certified \nmailing to Claimant was claimed on September 2, 2023; and the first-class letter \nwas  not  returned.    During  the  hearing,  Respondents argued for  dismissal  under \nRule 13.  Claimant opposed this. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  Claimant,  I  hereby  make  the following \nFindings  of  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nWATKINS – H301091 \n \n4 \n2. All  parties  received  notice  of  the  Motion  to  Dismiss  and  the  hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute th is claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, denied without prejudice. \n5. Claimant has requested a hearing on this claim. \n6. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n\nWATKINS – H301091 \n \n5 \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it deems \nworthy of belief.  Id. \n At the hearing, Claimant admitted that she received the Notice of Hearing.  \nAsked to explain why she did not respond to the 20-day letter, she testified: \nI  was  going  to  write  you  a  letter,  but  my  husband  went  in  the \nhospital and I—and  when he got out  [of] the hospital he went right \nback  and  my  20  days  was  up.    When  I  go[t]  home  from  that  last \nhospital visit, I was going to write you a letter and that’s when I got \nthe letter about the hearing today from y’all. \n \nShe  acknowledged  that  she  did  not  seek  an  extension  of  time  from  my  office \nwithin  which  to  respond.    Claimant  also  stated  that  she  has  been  preoccupied \nwith the aftermath of a motor vehicle accident in which she was involved earlier \nin 2023. \n The following exchange took place: \nQ. What,  if  anything,  have  you  done  since  [Graham]  withdrew \nfrom the case? \n \nA. Nothing. \n \nShe has not treated for any of her alleged work-related injuries in over two years.  \nIt  was  her  testimony  that  she  missed  eight  months  of  work  due  to  her  alleged \ninjuries. \n\nWATKINS – H301091 \n \n6 \n Claimant  objected  to  dismissal  of  her  claim, asked for  a  hearing  thereon, \nand explained that her lack of pursuit of the matter thus far had been due to her \nbeing  overwhelmed  by  events  in  her  personal  life,  including  her  husband’s \nhospitalization. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  hearing  on  the  Motion  to \nDismiss  under  Rule 13,  Claimant has not  yet  abridged  that  rule.    The  Motion  to \nDismiss  is  thus  denied  without  prejudice.  Prehearing  questionnaires  will  be \nimmediately issued to the parties, and this matter will proceed to a full hearing on \nthe merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby denied without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301091 DIANA L. WATKINS, EMPLOYEE CLAIMANT SMITH HOUSE, INC., EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 6, 2023, in Jonesboro, Craighe...","fetched_at":"2026-05-19T23:01:43.229Z","links":{"html":"/opinions/alj-H301091-2023-10-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Diana_H301091_20231012.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}