{"id":"alj-H304290-2025-05-08","awcc_number":"H304290","decision_date":"2025-05-08","opinion_type":"alj","claimant_name":"Alan Keune","employer_name":"Granite Mtn. Quarries 1","title":"KEUNE (DEC’D) VS. GRANITE MTN. QUARRIES 1 AWCC# H304290 May 08, 2025","outcome":"dismissed","outcome_keywords":["dismissed:5","denied:2"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Keune_Alan_H304290_20250508.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Keune_Alan_H304290_20250508.pdf","text_length":11663,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304290 \n \n \nALAN L. KEUNE, DEC’D, EMPLOYEE CLAIMANT \n \nGRANITE MTN. QUARRIES 1, \n EMPLOYER RESPONDENT \n \nACIG INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 8, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 7, 2025, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant through his widow, Holly Keune, pro se, not appearing. \n \nRespondents represented  by  Ms. Autumn  Clark  Boatright,  Attorney  at  Law, Pine \nBluff, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 7, 2025, in Little \nRock, Arkansas.  Testimony was taken from Claimant’s widow, Holly Keune, who \nappeared  on  his  behalf.   Admitted  into  evidence  was Commission  Exhibit  1, \nforms, pleadings, and correspondence  related  to  this  claim,  consisting  of 16 \npages. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on July  3,  2023,  Claimant \npurportedly suffered an injury to his head  and  back while at  work on  June 29, \n2023,  when  a  truck  struck  a  pile  of  boulders.  According  to the  Form  AR-2 that \n\nKEUNE – H304290 \n \n2 \n \nwas also filed on July 14, 2023, Respondents controverted the claim in its entirety, \nstating: \nThis claim was turned in as a head/back claim due to [a] haul truck \nrunning into a mound of boulders.  Mr. Keune then fell ill the night \nof  6/30/23  and  he  was  taken  to  the  hospital.    He  passed  away  on \n7/6/23.  Our position is that Mr. Keune’s death is not the result of \nthis incident. \n \nNo Form AR-C was filed. \n The  next  event  in  this  matter  took  place  on  November  6,  2024,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  represented  that \nClaimant  propounded  discovery  to  them  on  September  23,  2023;  that  they \nresponded  thereto  on  October  11,  2023,  and  that  no  activity  on  the claim has \noccurred since that time.  They requested a dismissal under Ark. Code Ann. § 11-\n9-702 (Repl. 2012) and AWCC 099.13. \n On  November  7,  2024,  the claim was  assigned  to  Administrative  Law \nJudge  JayO.  Howe  to  litigate.    His  office  wrote  Claimant  on  November  8,  2025, \nasking  for  a  response  to  the  motion  within  20  days.    The letter  was  sent  by  first \nclass  and  certified  mail  to  the Maumelle,  Arkansas address  listed  for  him  in  the \nfile.   “Holly Keune” signed for the certified  letter  on November  19, 2024, and the \nfirst-class letter was not returned. \n\nKEUNE – H304290 \n \n3 \n \n Mrs. Keune wrote the Commission on November 18, 2024: \nTo Whom It May Concern: \n \nThis  letter  serves  as  a  formal  response  opposing  the  motion  to \ndismiss  and  respectfully  requests  that  a  hearing  be  scheduled  for \nconsideration in the above-captioned Workers’ Compensation case. \n \nRespectfully, \n \n/s/ Holly Keune \n \nHolly Keune \nWidow of Alan L. Keune \n \n Based  on  this  objection,  Judge  Howe  took  the  Motion  to  Dismiss  under \nadvisement  and  issued preliminary  notices  and prehearing  questionnaires  to  the \nparties  on  November  25,  2024.  Respondents  filed  their  Preliminary  Notice  on \nDecember 10, 2024.  However, Mrs. Keune never filed a response.  On February \n5, 2025, the judge sent a letter to her by first-class mail, warning her that if she did \nnot   file   her   preliminary   notice   and   prehearing   questionnaire   responses   by \nFebruary 24, 2025, a hearing would be scheduled on the Motion to Dismiss.  This \ndeadline came and went without a response from Mrs. Keune. \n On March 7, 2025, a hearing on the Motion to Dismiss was scheduled for \nMay 7,  2025,  at  1:00 p.m.  at  the Commission  in  Little  Rock.    The Notice of \nHearing was  sent  to Mrs.  Keune via  first-class  and  certified  mail  to  the  same \naddress  as was  used  successfully before.   Mrs.  Keune  signed  for the  certified \nletter on March 18, 2025, while the first-class letter was not returned. \n\nKEUNE – H304290 \n \n4 \n \n The hearing on the Motion to Dismiss proceeded as scheduled before the \nundersigned.  Again, Claimant through Mrs. Keune failed to appear at the hearing.  \nBut  Respondents  appeared  through  counsel  and  argued  for  dismissal  under  the \nforegoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  documents  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the hearing witness and to observe her demeanor, I hereby make \nthe following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012) \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \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 \nthat  Claimant  has  failed  to  prosecute  this  claim under AWCC  R. \n099.13. \n4. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) (Repl. 2012). \n\nKEUNE – H304290 \n \n5 \n \n5. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(d) (Repl. 2012). \n6. The Motion to Dismiss is hereby denied. \n7. Claimant through his widow has requested a hearing on the issue of \nhis estate’s entitlement to initial benefits. \n8. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \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).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4) If within six (6) months after the filing of a claim for compensation \nno  bona  fide  request  for  a  hearing  has  been  made  with  respect  to \nthe  claim,  the  claim may,  upon  motion  and  after  hearing,  be \ndismissed   without   prejudice   to   the   refiling   of   the   claim   within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n\nKEUNE – H304290 \n \n6 \n \n(Emphasis   added)    Under   Ark.   Code   Ann.   §   11-9-705(a)(3)   (Repl.   2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould be granted.  The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \nformal  claim.    While  a  Form  AR-1  was  filed  in  this  case,  that  does  not  suffice  to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \nAppeals  discussed  the  minimum  requirements  necessary  for  correspondence  to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.    There,  the  court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that he  has  been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor  additional  compensation  where  the  correspondence  also  lists  the  claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146  (1993).    My \nreview of the Commission’s file discloses a document sufficient to constitute a \n\nKEUNE – H304290 \n \n7 \n \nclaim  for  initial  benefits  under Cook, supra.    That  document  is Mrs.  Keune’s \nNovember 18, 2024, letter to the Commission—discussed above. \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, \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 Mrs.  Keune admitted  under  oath  that  she  received  the  preliminary  notice \nand prehearing questionnaire by mail from Judge Howe’s office.  Asked to explain \nwhy  she  did  not  comply  with  the  deadlines  he  had  set  for  her  completion  of \nresponses  to  these  documents,  she  responded  that  she  attempted  without \nsuccess  to  hire  an  attorney;  and  thereafter,  she  had  simply  forgotten  about  the \nmatter.    As  for  her  continued  failure  to  respond  after  Judge  Howe  sent  her  the \nwarning on February 5, 2025, she testified that she never received it—despite the \nfact that it was correctly addressed.  Claimant requested a hearing on her claim, \nin the event that it is not dismissed. \n\nKEUNE – H304290 \n \n8 \n \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder Rule 13, she has not yet abridged that rule.  By the same token, I find that \nwhile § 11-9-702(a)(4) & (d) provide that a claim “may” (clearly intending that the \nadministrative  law  judge  has  discretion  in  the  matter)  be  dismissed  for  failure  to \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis matter will proceed to a full hearing on the merits. \n However, Claimant’s  estate is  hereby  advised  that  any  failures  to \ncomply  with  deadlines  in  this  matter  in  the  future  could  well  lead  to \nRespondents moving once again for dismissal—this time successfully. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \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. H304290 ALAN L. KEUNE, DEC’D, EMPLOYEE CLAIMANT GRANITE MTN. QUARRIES 1, EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED MAY 8, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 7, 2025, in Little Rock, Pulaski Co...","fetched_at":"2026-05-19T22:40:27.552Z","links":{"html":"/opinions/alj-H304290-2025-05-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Keune_Alan_H304290_20250508.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}