The opinion
Cite as 2021 Ark. App. 41
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION I
2023.06.22 12:09:01 -05'00' No. CV-19-720
2023.001.20174
Opinion Delivered: February 3, 2021
CORTNEY MOORE
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G607585]
BESTWAY RENT TO OWN,
CONTINENTAL INDEMNITY
COMPANY, AND ZACHARY AFFIRMED
DANIEL WATERS
APPELLEES
RAYMOND R. ABRAMSON, Judge
Cortney Moore appeals the Arkansas Workers’ Compensation Commission’s
(Commission’s) decision finding that Zachary Daniel Waters is entitled to immunity from
suit pursuant to the exclusive-remedy doctrine under the Arkansas Workers’ Compensation
Act. On appeal, Moore argues that the Commission’s decision should be reversed because
(1) Waters waived his immunity, (2) substantial evidence does not support the Commission’s
finding that Waters is entitled to immunity under the exclusive-remedy doctrine, and (3)
the exclusive-remedy doctrine deprives him of his rights under the Arkansas Constitution.
We affirm.
Moore and Waters were both employees of Bestway Rent to Own (Bestway). On
October 13, 2016, Waters was driving a Bestway truck with Moore as a passenger when the
truck collided with an eighteen-wheeler. As a result of the accident, Moore is paralyzed.
On November 29, Moore filed a workers’-compensation claim with Bestway, and
Bestway accepted the claim. On December 27, 2016, Moore filed a negligence complaint
against Waters in the Pope County Circuit Court. On November 28, 2017, Waters asked
the court to stay the case for a determination from the Commission on Waters’s immunity
pursuant to the exclusive-remedy doctrine. On December 8, 2017, the circuit court granted
Waters’s request.
The ALJ held a hearing on February 27, 2019, and on May 6, the ALJ entered an
opinion finding that Waters is entitled to immunity under the exclusive-remedy doctrine.
Specifically, the ALJ found that at the time of the accident, Waters was a co-employee of
Moore and was fulfilling Bestway’s nondelegable duty to provide a safe workplace. Moore
appealed the ALJ’s decision to the Commission. The Commission affirmed and adopted the
ALJ’s opinion. This appeal followed.
The standard of review in workers’-compensation cases is well settled. On appeal,
this court views the evidence and all reasonable inferences therefrom in the light most
favorable to the Commission’s decision and affirms that decision when it is supported by
substantial evidence. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767. Substantial
evidence exists only if reasonable minds could have reached the same conclusion without
resort to speculation or conjecture. Serrano v. Westrim, Inc., 2011 Ark. App. 771, 387 S.W.3d
292.
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The exclusive-remedy doctrine under the Arkansas Workers’ Compensation Act
provides that the “rights and remedies granted to an employee subject to the provisions of
this chapter, on account of injury or death, shall be exclusive of all other rights and remedies
of the employee.” Ark. Code Ann. § 11-9-105(a) (Repl. 2012). In other words, the
remedies available to an employee under the Act are exclusive, and the employer will have
immunity from additional suits. Id.; Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723. Our
supreme court has consistently interpreted Arkansas Code Annotated section 11-9-105 to
extend immunity to co-employees for actions arising from the alleged failure to provide a
safe workplace because those employees are charged with the employer’s nondelegable duty
of providing a safe workplace. Miller, 2013 Ark. 23, 425 S.W.3d 723.
On appeal in this case, Moore argues that the Commission’s decision should be
reversed because Waters waived his immunity under the exclusive-remedy doctrine.
Specifically, he claims that Waters admitted that jurisdiction and venue were proper in the
Pope County Circuit Court in his initial answer to the negligence complaint and thus
Waters waived his immunity.
We cannot reach the merits of Moore’s waiver argument because it is not preserved
for our review. In order to preserve an issue for appellate review in a workers’-compensation
case, it is a party’s responsibility to present the issue to the Commission and obtain a ruling.
St. Edward Mercy Med. Ctr. v. Chrisman, 2012 Ark. App. 475, 422 S.W.3d 171. Because
Moore failed to apprise the Commission of any argument pertaining to Waters’s waiver of
immunity or obtain any ruling on the argument, we cannot consider it on appeal.
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Moore claims that he raised the waiver issue in his responses to the ALJ’s prehearing
questionnaire and in his reply brief in his appeal to the Commission. We disagree. In those
documents, Moore discusses the waiver issue in the context of his civil case’s procedural
history. He did not submit the waiver issue to the ALJ, and neither the ALJ nor the
Commission issued a ruling on whether Waters waived his immunity. Moreover, in making
his waiver argument, Moore relies on the contents of pleadings filed in the circuit court.
Those pleadings are not included in our record, and matters outside the record will not be
considered on appeal. Dodge v. Lee, 352 Ark. 235, 100 S.W.3d 707 (2003).
Moore also argues that substantial evidence does not support the Commission’s
decision that Waters is immune from suit under the exclusive-remedy doctrine. He
acknowledges that our supreme court has extended the exclusive-remedy doctrine to co-
employees for actions arising from the alleged failure to provide a safe workplace because
these employees are charged with the employer’s nondelegable duty of providing a safe
workplace. See, e.g., Miller, 2013 Ark. 23, 425 S.W.3d 723; Brown v. Finney, 326 Ark. 691,
932 S.W.2d 769 (1996). However, he claims that the instant case is distinguishable because
Bestway accepted Moore’s claim as compensable and is paying all medical and indemnity
benefits. He additionally asks us to overrule this supreme court precedent because it conflicts
with King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).
Moore’s argument is meritless. In Brown, our supreme court affirmed immunity to
the co-employee where the plaintiff received workers’-compensation benefits from his
employer. Brown, 326 Ark. 691, 932 S.W.2d 769. As to Moore’s request to overturn the
precedent, we are powerless to overturn decisions of our supreme court. Osborne v. Bekaert
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Corp., 97 Ark. App. 147, 245 S.W.3d 185 (2006). We further point out that our supreme
court declined to overturn this precedent in Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723.
Moore additionally claims that substantial evidence does not support the
Commission’s decision that Waters is entitled to immunity because the evidence shows that
the accident occurred during Waters’s detour to obtain food. The Commission rejected this
argument because Moore stipulated in the prehearing process that he had sustained a
compensable injury. A compensable injury is an “accidental injury . . . arising out of and in
the course of employment.” Ark. Code Ann. § 11-9-102(4)(A)(i). The Commission further
found that there was no definitive testimony that Waters made a detour to purchase food.
We find no error by the Commission.
Moore lastly argues that the exclusive-remedy doctrine deprives him of his rights
under article 2, sections 2, 3, and 13 of the Arkansas Constitution because it prevents him
from seeking certain remedies that are unavailable under workers’-compensation laws. The
Commission declined to rule on this issue because Moore raised the constitutional challenge
for the first time in his posthearing brief and not during the prehearing process or at the
hearing. “It [is] the appellant’s responsibility to obtain a ruling on this issue by the
Commission,” and “[a] question not passed upon below presents no question for decision
here.” Goodwin v. Phillips Petroleum Co., 72 Ark. App. 302, 305, 37 S.W.3d 644, 647 (2001)
(quoting W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 294, 921 S.W.2d 954, 958
(1996)). We have stated that “[a]ll legal and factual issues should be developed at the hearing
before the administrative law judge.” Ester v. Nat’l Home Ctrs., Inc., 61 Ark. App. 91, 96,
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967 S.W.2d 565, 568 (1998). Consequently, we cannot address the merits of Moore’s
constitutional challenge.
Affirmed.
VIRDEN and HIXSON, JJ., agree.
David Hodges, for appellant.
Friday, Eldredge & Clark, LLP, by: James M. Simpson and Phillip M. Brick, Jr., for
separate appellee Zachary Daniel Waters.
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