CORTNEY MOORE, EMPLOYEE CLAIMANT
BESTWAY RENT-TO-OWN, EMPLOYER RESPONDENT NO. 1
CONTINENTAL INDEMNITY CO., CARRIER RESPONDENT NO. 1
ZACHARY DANIEL WATERS RESPONDENT NO. 2
LIBERTY MUTUAL INS. CO., CARRIER RESPONDENT NO. 2
WCC No. G607585
Arkansas Workers Compensation
Before the Arkansas Workers’ Compensation Commission
May 6, 2019
Hearing
before Administrative Law O. Milton Fine II on February 27,
2019 in Russellville, Pope County, Arkansas.
Claimant represented by Mr. David A. Hodges, Attorney at Law,
Little Rock, Arkansas.
Respondents No. 1, represented by Mr. James A. Arnold II,
Attorney at Law, Fort Smith, Arkansas, excused from
participation.
Respondents No. 2 represented by Mr. Phillip M. Brick,
Attorney at Law, Little Rock, Arkansas.
Hon.
O. Milton Fine, II Administrative Law Judge.
STATEMENT
OF THE CASE
On
February 27, 2019, the above-captioned claim was heard in
Russellville, Arkansas. A pre-hearing conference took place
on December 3, 2018. A prehearing order entered on that date
pursuant to the conference was admitted without objection as
Commission Exhibit 1. At the hearing, the parties confirmed
that the stipulations and issues, and respective contentions,
as amended, were properly set forth in the order.
Stipulations
At the
hearing, the parties discussed the stipulations set forth in
Commission Exhibit 1. With an amendment of Stipulation No. 2
reached at the hearing, they are the following, which I
accept:
1. The Arkansas Workers’ Compensation Commission has
jurisdiction over this claim.
2. The employee/employer/carrier relationship existed between
Claimant and Respondents No. 1 on October 13, 2016, when
Claimant sustained a compensable paralyzing injury to C4.
Respondents No. 2 have entered into this stipulation solely
for the purposes of this action, and it should not be
interpreted as an admissible for purposes of any future
potential litigation in the Circuit Court of Pope County,
Arkansas. or elsewhere.
3. Respondents No. 1 accepted this claim as compensable from
the outset and have paid benefits pursuant thereto.
4. Respondent Zachary Daniel Waters was an employee of
Respondent Bestway Rent-To-Own on October 13, 2016.
5. The Circuit Court of Pope County, Arkansas, in
Shaunesha Moore, Guardian of the Estate of Cortney Moore,
an Incapacitated Person and Cortney Moore, Individually v.
Zachary Daniel Waters, Case No. 58CV-16-608, granted the
parties leave to pursue with the Commission whether
Respondent Waters is immune from suit based on the exclusive
remedy provision of the Arkansas Workers’ Compensation
Act (the “Act”), Ark. Code Ann. §
11-9-105(a) (Repl. 2012).
6. The Commission has exclusive, original jurisdiction in
this matter to determine whether the exclusive remedy
provision of the Act applies here.
Issue
At the
hearing, the parties discussed the issue set forth in
Commission Exhibit 1. After an amendment at the hearing, the
following was litigated:
1. Whether Respondent Zachary Daniel Waters is entitled to
immunity under the exclusive remedy provision of the Act,
Ark. Code Ann. § 11-9-105(a) (Repl. 2012).
Contentions
The
respective contentions of the parties are as follows:
Claimant:
1.
Claimant is not subject to workers’ compensation in
this situation.
Respondents
No. 2:
1.
Respondent Zachary Daniel Waters contends that he was a
co-employee of Claimant at the time of his compensable
injury. Because Respondent Waters was fulfilling the duty of
his employer to provide a safe place to work at the time of
the accident, he is entitled to the same immunity as
Respondent Bestway Rent-To-Own (“Bestway”). Thus,
Respondents No. 2 are protected from tort liability under the
exclusive remedy provision of the Act.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
After
reviewing the record as a whole, including medical reports,
documents, deposition transcripts, and other matters properly
before the Commission, and having had an opportunity to hear
the testimony of the hearing witness and to observe his
demeanor, 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. The stipulations set forth above are reasonable and are
hereby accepted.
3. The preponderance of the evidence establishes that
Respondent Zachary Daniel Waters was a co-employee of
Claimant and was fulfilling the non-delegable duty of
Respondent Bestway Rent-To-Own to provide a safe workplace,
and is entitled to tort immunity vis-a-vis Claimant under the
exclusive remedy provision of the Arkansas Workers’
Compensation Act, Ark. Code Ann. § 11-9-105(a) (Repl.
2012), concerning the accident of October 13, 2016 and the
resulting compensable injury to Claimant. See Brown v.
Finney, 326 Ark. 691, 697, 932 S.W.2d 769, 773 (1996).
CASE
IN CHIEF
Summary
of Evidence
The
sole hearing witness was Zachary Daniel Waters, who also
testified via deposition. Claimant, Shauneisha Moore, and
Rick Lillard were deposed as well.
In
addition to the prehearing order discussed above, also
admitted into evidence in this case were Claimant’s
Exhibit 1, the separately-bound transcript
[1] of the deposition of
Claimant taken July 6, 2018, consisting of 46 transcribed
pages plus a nine-page index; Claimant’s Exhibit 2, the
transcript of the deposition of Shauneisha Moore taken
September 8, 2017, consisting of 72 transcribed pages and 371
pages of exhibits thereto; Claimant’s Exhibit 3, the
separately-bound transcript of the deposition of Shauneisha
Moore taken July 6, 2018, consisting of 24 transcribed pages
plus a five-page word index; Claimant’s Exhibit 4, the
separately-bound transcript of the deposition of Rick Lillard
taken September 4, 2018, consisting of 29 transcribed pages
plus a five-page word index; Claimant’s Exhibit 5, the
separately-bound compilation of exhibits to Lillard’s
deposition, consisting of 154 pages; Claimant’s Exhibit
6, the transcript of the deposition of Zachary Daniel Waters
taken July 6, 2018, consisting of 71 transcribed pages plus a
one-page exhibit; and Respondents No. 2 Exhibit 1,
non-medical documents, consisting of four index pages and 179
numbered pages thereafter.
In
addition, I have blue-backed to the record the post-hearing
briefs of Claimant and Respondents No. 2 that were filed on
April 26, 2019 and consist of 10 and 13 numbered pages,
respectively.
Factual
and Procedural History
On the
afternoon of October 13, 2016, Zachary Daniel Waters and
Claimant were in a Bestway box truck, en route to the
residence of a customer. They were traveling southeast on
U.S. Hwy. 64 in Johnson County,
[2] Arkansas. Waters was driving. He
negotiated a left turn onto State Highway 359. When the
Bestway truck crossed the northwest-bound lane of Highway 64,
it was struck on the passenger side by an eighteen-wheeler.
As a result of the collision, Claimant suffered a paralyzing
injury–which the parties have conceded was compensable.
Respondent
Bestway and its workers’ compensation carrier,
Respondent Continental Indemnity Company, accepted the injury
as compensable. On December 27, 2016, Claimant and Mrs. Moore
(in her capacity as guardian of his estate) filed a personal
injury lawsuit in Pope County Circuit Court against
Respondent Waters. On December 8, 2017, Circuit Judge Dennis
Sutterfield entered an order that stayed the action and
granted the parties leave to seek a determination from the
Commission whether Respondent Waters is immune from suit
under the exclusive remedy provision of the Act, Ark. Code
Ann. § 11-9-501(a) (Repl. 2012). See Entergy Ark.,
Inc. v. Pope Cty. Cir. Ct., 2014 Ark. 509, 452 S.W.3d
81. The Clerk of the Commission, acting on this hearing
request, assigned this file to me on September 19, 2018. This
proceeding followed.
Adjudication
A.
Whether Respondent Zachary Daniel Waters is entitled to
immunity under the exclusive remedy provision of the Act,
Ark. Code Ann. § 11-9-105(a) (Repl. 2012).
Introduction.
In this
action, Respondents No. 2 have alleged that Respondent Waters
was a co-employee of Claimant at the time of motor vehicle
accident and resulting injury to Claimant. They have also
asserted that Respondent Waters...