Austin Rushing vs. Williams Mechanical Srvs Inc

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208119 AUSTIN RUSHING, EMPLOYEE CLAIMANT WILLIAMS MECHANICAL SRVS INC., EMPLOYER RESPONDENT NATIONAL AMERICAN INSURANCE CO. INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS CLAIMS MANAGEMENT SERVICES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 12, 2023 Hearing before Administrative Law Judge Steven Porch on June 9, 2023 in Little Rock, Pulaski County, Arkansas. Claimant, pro se. The Respondents were represented by Mr. Jason M. Ryburn, Attorney at Law, Little Rock, Arkansas. I. BACKGROUND This matter comes before the Commission on a Motion to Dismiss filed by Respondents. A hearing on the motion was conducted on June 9, 2023, in Little Rock, Arkansas. Claimant, who is pro se, did not appear for the hearing. Respondents were represented at the hearing by Mr. Jason M. Ryburn, Attorney at Law, of Little Rock, Arkansas. In addition to Respondent’s argument, the record consists of the Commission’s file, which has been incorporated herein in its entirety by reference, including all exhibits properly admitted before the Commission. The evidence reflects that Claimant’s injury occurred on August 19, 2021, where he purportedly injured his head. This incident allegedly occurred when another worker left a hammer on top of a ladder that fell striking Claimant in the head causing a laceration.

RUSHING H208119 2 A hearing was held on June 9, 2023, in Little Rock, Arkansas, on the Motion to Dismiss. And as previously stated, the Claimant did not appear for the hearing. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW After reviewing the record as a whole and other matters properly before the Commission, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): 1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. 2. All parties received reasonable and timely notice of the Motion to Dismiss and the hearing thereon pursuant to AWCC R. 099.13. 3. Respondents did prove by a preponderance of the evidence that Claimant has failed to prosecute his claim under AWCC R. 099.13. 4. The Motion to Dismiss should be, and hereby is, granted. III. DISCUSSION AWCC 099.13 provides: Upon meritorious application to the Commission from either party in an action pending before the Commission, requesting that the claim be dismissed for want of prosecution, the Commission may, upon reasonable notice to all parties, enter an order dismissing the claim for want of prosecution. See generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance of the evidence that dismissal should be granted. The standard “preponderance of the evidence” means the evidence having greater weight or convincing

RUSHING H208119 3 force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). A claimant’s testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and how much weight to accord to that person’s testimony are solely up to the Commission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must sort through conflicting evidence and determine the true facts. Id. In so doing, the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. After consideration of all the evidence, I find that Claimant and Respondents were given reasonable notice, at the addresses provided by each party, for the Motion to Dismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should be granted. CONCLUSION Based on the findings of fact and conclusions of law set forth above, Respondents’ Motion to Dismiss is hereby granted without prejudice. IT IS SO ORDERED. ________________________________ STEVEN PORCH Administrative Law Judge