{"id":"alj-H306170-2024-09-30","awcc_number":"H306170","decision_date":"2024-09-30","opinion_type":"alj","claimant_name":"Roshonda Ray","employer_name":"Hino Mtrs. Mfg. USA, Inc","title":"RAY VS. HINO MTRS. MFG. USA, INC. AWCC# H306170 September 30, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1","denied:2"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Ray_Roshonda_H306170_20240930.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ray_Roshonda_H306170_20240930.pdf","text_length":9495,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306170 \n \n \nROSHANDRA RAY, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED SEPTEMBER 30, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  27, \n2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se. \n \nRespondents represented by  Mr. Jason  M. Ryburn, Attorney at Law, Little  Rock, \nArkansas. \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 September 27, 2024, in \nForrest  City,  Arkansas.    Claimant, pro  se,  appeared\n1\n at  the  hearing and  gave \ntestimony.   Respondents  appeared  through  above-captioned  counsel.   Admitted \ninto  evidence  was Commission Exhibit  1, forms, pleadings, and correspondence \n \n \n1\nAs  the  record  reflects,  Claimant  was  late  for  the  hearing.    I  began  the \nhearing promptly at 10:31 a.m., noted her absence, admitted Commission Exhibit \n1  into  evidence,  allowed  Respondents’  counsel  to  make  his  presentation  in \nsupport of his client’s motion, and then closed the record.  Shortly thereafter, \nClaimant  appeared.    Because  the  hearing  was  being  held  during  a  heavy \nrainstorm and because I accepted Claimant’s excuse that  the  inclement  weather \nmade  her tardy,  the  record  was  re-opened.  Thereafter, Respondents’ counsel \nessentially repeated his earlier arguments, and Claimant objected to the Motion to \nDismiss and gave testimony. \n\nRAY – H306170 \n \n2 \n \nrelated to this claim, consisting of 14 pages.  See Ark. Code Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”). \n The record shows the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on September  21,  2023, reflects \nthat Claimant purportedly suffered an injury to her hand at work on September 14, \n2023,  when  she  reached  for  a  part  on  the  assembly  line  and  was  struck  by  a \nbrake  assembly.    Per  the  original  and  amended  Forms  AR-2  that  were  filed  on \nSeptember  27  and  October  4,  2023,  respectively,  Respondents  accepted  the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On February 15, 2024, through then-counsel Mark Alan Peoples, Claimant \nfiled a Form AR-C, alleging that she suffered a crush injury to her hand on August \n9, 2023.  The full range of additional benefits was requested.  No hearing request \naccompanied this  filing.    Respondents’  counsel  entered his appearance  on \nFebruary 23, 2024. \n On June  24,  2024, Peoples moved  to  withdraw  from  his representation  of \nClaimant.  In an Order entered on July 10, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until July 25, \n2024.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe claim because “[n]o substantial efforts to prosecute the claim have been made \n\nRAY – H306170 \n \n3 \n \nand  no  hearing  has  been  requested  in  the  past  six  months.”  My  office wrote \nClaimant on July 29,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Forrest  City,  Arkansas \naddress for her listed in the file and on the Form AR-C.  The United States Postal \nService  has  been  unable  to  verify  whether Claimant claimed the  certified  letter; \nbut the  first-class  letter  was  not  returned.   Regardless,  no  response  from her to \nthe  motion was  forthcoming.    On August  28,  2024,  a  hearing  on  the Motion to \nDismiss was scheduled for September 27, 2024, at 10:30 a.m. at the St. Francis \nCounty Courthouse in Forrest City.  The notice was sent to Claimant via first-class \nand  certified  mail to  the  same  address as  before.   In  this  instance,  the certified \nletter was  returned  to the  Commission,  unclaimed,  on  September 26, 2024.   But \nthe first-class letter was not returned. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nSeptember  27,  2024.    Again,  Claimant  appeared at  the  hearing to  object  to \ndismissal  of  her  claim.    Respondents appeared  through  counsel  and  argued  for \ndismissal under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nRAY – H306170 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \ndismissal  of  this  claim  is  warranted  under  Ark.  Code  Ann. § 11-9-702(d) \n(Repl. 2012). \n5. The Motion to Dismiss should be, and hereby is, denied without prejudice. \n6. Claimant has requested a hearing on this claim. \n7. 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, § 11-9-702(d) provides: \nIf  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 \n\nRAY – H306170 \n \n5 \n \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \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 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 At the hearing, Claimant testified that the reason that she has not acted to \nprosecute her claim since her attorney’s withdrawal was because she was unsure \nof what to do.  In addition, she explained that she did not receive either version of \nthe  20-day  letter  or  the  certified  mailing  of  the  Notice  of  Hearing,  explaining  that \nher mail is mis-delivered at times to a neighbor.  The neighbor is disabled, making \n\nRAY – H306170 \n \n6 \n \nretrieval of the mail difficult.  Claimant further testified that she continues to have \nproblems  with  her  left  hand  and  arm  as  a  result  of  her  alleged  work-related \nincident,  that  she  objects  to  the  dismissal  of  her  claim,  and  that  she  wants  a \nhearing on her entitlement to additional treatment. \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(d)  provides  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 Based  on  Claimant’s  hearing  request,  prehearing  questionnaires  will  be \nimmediately issued to the parties, and this matter will proceed to a full hearing on \nthe merits. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, the Motion to Dismiss is hereby 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. H306170 ROSHANDRA RAY, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED SEPTEMBER 30, 2024 Hearing before Administrative Law Judge O. Milton Fine II on September 27, 2024, in Forrest C...","fetched_at":"2026-05-19T22:49:39.290Z","links":{"html":"/opinions/alj-H306170-2024-09-30","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Ray_Roshonda_H306170_20240930.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}