{"id":"alj-H301768-2023-11-29","awcc_number":"H301768","decision_date":"2023-11-29","opinion_type":"alj","claimant_name":"Joseph Baxter","employer_name":"Overhead Door Of Little Rock","title":"BAXTER VS. OVERHEAD DOOR OF LITTLE ROCK AWCC# H301768 NOVEMBER 29, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:4"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BAXTER_JOSEPH_H301768_20231129.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAXTER_JOSEPH_H301768_20231129.pdf","text_length":4878,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301768 \n \nJOSEPH A. BAXTER, EMPLOYEE  CLAIMANT \n \nOVERHEAD DOOR OF LITTLE ROCK, \nEMPLOYER                                                                                                RESPONDENT \n \nBRIDGEFIELD CASUALTY INSURANCE CO. \nINSURANCE COMPANY                                                                          RESPONDENT  \n \n \nOPINION FILED NOVEMBER 29, 2023 \n \nHearing before Administrative Law Judge Steven Porch on November 28, 2023, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented himself Pro Se. \n \nThe Respondents were represented by Mr. Jason 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 on November 28,  2023.  A  hearing  on  the  motion  was  conducted  on \nNovember 28, 2023, in Little Rock, Arkansas. The Claimant himself was not present at \nthe  hearing.  Respondents  were  represented  at  the  hearing  by  Mr.  Jason  Ryburn  who \nargued the motion.   \n The evidence reflects that Claimant’s injury occurred on October 18, 2022, where \nhe  injured  his  ribs  and  other  whole  body in  a  car  collision.  This  incident  allegedly  has \nsome connection to his employment. Since filing his Form C on March 16, 2023, this case \nhas been inactive until Respondents filed a Motion to Dismiss, on September 26, 2023, \ndue to the lack of prosecution. The Claimant was served through both certified and first \n\nBAXTER H301768 \n \n \n2 \nclass mail. Commissions’ file shows that the Claimant was served through certified mail \non October 26, 2023.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole including Commission Exhibit 1, non-medical \ndocuments, 5 pages and Commission Exhibit 2, the Notice of Hearing, and other matters \nproperly  before  the  Commission,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance 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 \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\nBAXTER H301768 \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 for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule.  The Claimant has not prosecuted this claim since \nthe filing of his Form C on March 16, 2023, over eight months ago. Moreover, the Claimant \ndid not show up for the  Motion to Dismiss hearing after receiving ample notice. Thus,  I \nfind by the preponderance of the evidence that Respondents’ 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. H301768 JOSEPH A. BAXTER, EMPLOYEE CLAIMANT OVERHEAD DOOR OF LITTLE ROCK, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE CO. INSURANCE COMPANY RESPONDENT OPINION FILED NOVEMBER 29, 2023 Hearing before Administrative Law Judge Steven Porch on November 28...","fetched_at":"2026-05-19T23:00:52.685Z","links":{"html":"/opinions/alj-H301768-2023-11-29","pdf":"https://labor.arkansas.gov/wp-content/uploads//BAXTER_JOSEPH_H301768_20231129.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}