# VanWagoner v. Beverly Enterprises > Supreme Court of Arkansas · July 2, 1998 · 334 Ark. 12 URL: https://www.frixlaw.com/law-library/cases/9639643 ## Case - **Full name:** Laurie VanWAGONER v. BEVERLY ENTERPRISES - **Court:** Supreme Court of Arkansas - **Decided:** July 2, 1998 - **Citations:** 334 Ark. 12; 970 S.W.2d 810; 1998 Ark. LEXIS 428 - **Precedential status:** Published - **Opinion:** Concurrence by Imber - **Judges:** Arnold, Newbern, Imber - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639643 ## Opinion text Annabelle Clinton Imber, Justice, concurring. The majority has forged new ground by holding that a circuit court no longer has jurisdiction to determine whether it or the Workers’ Compensation Commission has jurisdiction to hear a case. Because I concur with the result but not this departure from our well-established law, I must write separately. As we recently acknowledged in Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381 , 969 S.W.2d 648 (1998), pursuant to Article 5, Section 32, of the Arkansas Constitution, the Workers’ Compensation Commission has jurisdiction only when there is an employment relationship between the litigants. In other words, an employment relationship is a condition precedent to the Commission’s jurisdiction. Thus, we have consistently held throughout the last thirty-six years that the circuit court has concurrent jurisdiction with the Commission to make the threshold determination as to whether an employment relationship exists between the parties such that the merits of the case must be resolved by the Workers’ Compensation Commission. Nucor Holding Corp. v. Rinkines, 326 Ark. 217 , 931 S.W.2d 426 (1996); Craig v. Traylor, 323 Ark. 363 , 915 S.W.2d 257 (1996); Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26 , 888 S.W.2d 657 (1994); Nucor-Yamato Steel Co. v. Circuit Court of Mississippi County, 317 Ark. 493 , 878 S.W.2d 745 (1994); Fore v. Circuit Court of Izard County, 292 Ark. 13 , 727 S.W.2d 840 (1987), overruled on other grounds, 315 Ark. 333 , 869 S.W.2d 6 (1994); Campbell v. Waggoner, 235 Ark. 374 , 360 S.W.2d 124 (1962); Co-Ark. Const. Co. v. Amsler, 234 Ark. 200 , 352 S.W.2d 74 (1961). The distinction between jurisdiction to determine jurisdiction and jurisdiction to hear the merits of the case cannot be overemphasized. In the cases mentioned above, we have upheld the circuit court’s concurrent jurisdiction to determine whether an employment relationship exists, upon either a motion to dismiss or a motion for summary judgment when the facts are undisputed or there is no material issue of fact, or at trial when there are material issues of fact regarding the employment relationship. If the circuit court decides that an employment relationship exists between the litigants, then it must dismiss the case because resolution of the merits of the case belongs within the exclusive jurisdiction of the Workers’ Compensation Commission. In none of these cases have we held, as the majority concludes, that the circuit court does not have jurisdiction to make the initial jurisdictional determination regarding the existence of an employment relationship. In this case, it was undisputed that an employment relationship existed between Ms. VanWagoner and Beverly Enterprises. The only disputes were whether her injury occurred during the scope of her employment, and whether a preexisting condition contributed to her injuries. Similarly, in Rankin v. Farmers Tractor & Equip. Co., supra, the employee argued that he was entitled to seek damages in circuit court because the employer controverted his claim for workers’ compensation by asserting that his injury did not occur in the course and scope of his employment. We held such an argument to be without merit because an “employer is immune from liability for damages in a tort action brought by an injured employee.” Id. (citing Fore v. Circuit Court of Izard County, supra). Thus, according to our well-established precedent, the circuit court correctly dismissed Ms. VanWagoner’s tort claim because it was clear that the merits of the case (whether she was acting within the scope of her employment and whether she had a preexisting condition) fell within the exclusive jurisdiction of the Workers’ Compensation Commission. Hence, I agree with the majority’s decision to affirm the trial court’s dismissal, but not with its reasoning. Specifically, I disagree with the majority’s decision to abandon our well-established rule of concurrent jurisdiction to determine jurisdiction in favor of Professor Larson’s rule that the Workers’ Compensation Commission has “exclusive, original jurisdiction to determine the facts that establish jurisdiction . . . unless the facts are so one-sided that the issue is no longer one of fact but one of law.” I cannot agree with the majority’s decision in this respect for several reasons. First, the majority claims that we must discard our prior rule of concurrent jurisdiction because it is “fraught with weakness.” No such weakness is present in this case. Ms. VanWagoner tried to circumvent the Commission’s jurisdiction by filing her action in the circuit court. Once the circuit court determined that there was an employment relationship between Ms. VanWagoner and Beverly Enterprises, it correctly ruled that the complaint fell within the Commission’s jurisdiction and dismissed the complaint. In other words, the circuit court correctly retained jurisdiction only to the extent necessary to determine that it did not have jurisdiction over the merits of Ms. VanWagoner’s claim. There simply is no reason in this case to abandon our well-established precedent in favor of a different jurisdictional rule. Second, we refused to adopt Larson’s approach only two years ago in Craig v. Traylor, supra. Nothing has changed in the last two years that would require us to reconsider that holding. Third, the majority claims that we must abandon our prior jurisdictional rule because concurrent jurisdiction is unworkable. Yet, the new rule adopted by the majority retains concurrent jurisdiction when “the facts are so one-sided that the issue is no longer one of fact but one of law.” The new rule does not abolish concurrent jurisdiction, and the alleged weaknesses associated with it, but merely changes the basis on which it exists. Finally, we have consistently held that an employee may file before the Commission or the circuit court a claim for damages arising out of injuries caused by the employer’s deliberate and intentional conduct. Hill v. Patterson, 313 Ark. 322 , 855 S.W.2d 297 (1993); Sontag v. Orbit Valve, Co., 283 Ark. 191 , 672 S.W.2d 50 (1984); Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350 , 230 S.W.2d 28 (1950). As I understand the majority opinion, the circuit court still has jurisdiction to determine whether the facts in an intentional-tort case are “so one-sided that the issue is no longer one of fact but one of law.” In sum, the new rule adopted by the majority creates more questions than answers. For these reasons, I agree with the majority’s decision to affirm the dismissal of VanWagoner’s tort claim, but would do so based on our established precedent instead of the new rule adopted by the majority. Newbern, J., joins this concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639643. Public record. Not legal advice.