BRENDA HENDRIX, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF GUY D. HENDRIX, DECEASED APPELLANT
ALCOA, INC. APPELLEE
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-14-173-3]
HONORABLE GRISHAM PHILLIPS, JUDGE
MOTION TO DISMISS DENIED.
Simmons Hanly Conroy, by: William Kohlburn; Odom Law Firm,
P.A., by: Russell Winburn; and Cullen & Co., PLLC, by:
Tim Cullen, for appellant.
Hawkins Parnell Thackston & Young LLP, by: H. Barret
Marshall, Jr.; and Wright, Lindsey & Jennings LLP, by:
Rodney P. Moore and Michael A. Thompson, for appellee Alcoa
Friday, Eldredge & Clark, LLP, by: Robert S. Shafer and
Guy Alton Wade, for amici curiae Arkansas State Chamber of
Commerce and Associated Industries of Arkansas, Inc.
Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for
amicus curiae Arkansas Self Insurers Association.
L. Pake, for amicus curiae Death & Permanent Total
Disability Trust Fund.
COURTNEY HUDSON GOODSON, Associate Justice.
Brenda Hendrix, individually, and as the Special
Administratrix of the Estate of Guy D. Hendrix, Deceased (the
"estate"), appeals the amended judgment entered by
the Saline County Circuit Court granting the motion to
dismiss filed by appellee Alcoa, Inc. For reversal, the estate
contends that the exclusive-remedy provision of the Arkansas
Workers' Compensation Act (the "Act") does not
bar a common-law tort action against the decedent's
employer because the Act provides no remedy for the disease
that caused the decedent's death. We accepted
certification of this case from the Arkansas Court of Appeals
in accordance with Arkansas Supreme Court Rule 1-2(d), on the
basis that the appeal presents an issue of first impression
concerning a matter of substantial public interest and a
significant question of law concerning the interpretation of
an act of the General Assembly. See Ark. Sup. Ct. R.
1-2(b)(1), (4) & (6). In keeping with legislative intent,
we must affirm the circuit court's decision.
facts of this case are not disputed. The decedent, Guy D.
Hendrix, worked for Alcoa from 1966 until his retirement in
the fall of 1995. In June 2012, he received a diagnosis of
mesothelioma, an asbestos-related cancer. In September 2012,
Hendrix filed a claim against Alcoa for workers'
compensation benefits, alleging that he was exposed to
asbestos during the course of his employment. On November 7,
2012, an administrative law judge found that the claim was
barred under the provisions of Arkansas Code Annotated
section 11-9-702(a)(2) (Repl. 2012). This subsection of the
statute provides in relevant part that
(A)A claim for compensation for disability on account of
injury which is either an occupational disease or
occupational infection shall be barred unless filed with the
commission within two (2) years from the date of the last
injurious exposure to the hazards of the disease or
(B)However, a claim for disability on account of silicosis or
asbestosis must be filed with the commission within one (1)
year after the time of disablement, and the disablement must
occur within three (3) years from the date of the last
injurious exposure to the hazard of silicosis or asbestosis.
judge concluded that Hendrix's claim was time-barred
because it was not filed within three years of the last date
of the injurious exposure. Hendrix did not appeal the law
judge's decision to the full commission.
died in November 2013. In April 2014, the estate initiated
this wrongful-death and survival action against Alcoa. Alcoa
subsequently filed a motion to dismiss the estate's
amended complaint against it, asserting that the circuit
court lacked jurisdiction because the claims fell within the
exclusive-remedy provision of the Act. After a hearing, the
circuit court entered an order dismissing the claims against
Alcoa with prejudice. This appeal followed.
reversal, the estate contends that the circuit court erred in
dismissing its complaint against Alcoa. It asserts that a
circuit court has jurisdiction to entertain a civil action
against an employer when the employee has no remedy under the
Act. More specifically, the estate maintains that
Hendrix's opportunity to obtain workers' compensation
benefits ceased before his claim accrued and that the Act
provided no remedy for Hendrix's occupational disease
because the disease manifested after the limitations period
case requires us to construe the exclusive-remedy provision
of the Act in conjunction with section 11-9-702(a)(2)(B). The
basic rule of statutory construction is to give effect to the
intent of the General Assembly. Gerber Prods. Co. v.
Hewitt, 2016 Ark. 222, 492 S.W.3d 856. Statutes relating
to the same subject must be construed together and in
harmony, if possible. Hammerhead Contracting & Dev.,
LLC v. Ladd, 2016 Ark. 162, 489 S.W.3d 654. It is
axiomatic that this court strives to reconcile statutory
provisions to make them consistent, harmonious, and sensible.
Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.
When interpreting the workers' compensation statutes, we
must strictly construe them. Ark. Code Ann. §
11-9-704(c)(3); Miller v. Enders, 2013 Ark. 23, 425
S.W.3d 723. "The doctrine of strict construction
requires this court to use the plain meaning of the language
employed." Stewart v. Ark. Glass Container,
2010 Ark. 198, at 6, 366 S.W.3d 358, 361-62. Strict
construction means narrow construction and requires that
nothing be taken as intended that is not clearly expressed.
Lambert v. LQ Mgmt., LLC, 2013 Ark. 114, 426 S.W.3d
question of the correct application and interpretation of an
Arkansas statute is a question of law, which this court
decides de novo. Worsham v. Bassett, 2016 Ark. 146,
489 S.W.3d 162. We are not bound by the circuit court's
decision; however, in the absence of a showing that the
circuit court erred, its interpretation will be accepted as
correct. McLemore v. Weiss, 2013 Ark. 161, 427
exclusive-remedy provision of the Act is found at Arkansas
Code Annotated section 11-9-105(a), which states in part that
(a) 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, his legal representative, dependents, next of
kin, or anyone otherwise entitled to recover damages from the
said that this provision clearly indicates that any claim for
injury or death against an employer may only be brought under
the Act, thus eliminating an employer's tort liability.
Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42
S.W.3d 443 (2001). The reason for such exclusivity is found
in the general purpose behind our workers' compensation
laws, which was to change the common law by shifting the
burden of all work-related injuries from individual employers
and employees to the consuming public, with the concept of
fault being virtually immaterial. Craven v. Fulton
Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842
(2005). With the passage of such statutes, employers gave up
the common-law defenses of contributory negligence, fellow
servant, and assumption of the risk; likewise, employees gave
up the chance to recover unlimited damages in tort actions in
return for certain recovery in all work-related cases.
Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769
the exclusive-benefits provision of our compensation law
favors both the employer and the employee, we have taken a
narrow view of any attempt to seek damages beyond that
favored, exclusive remedy. Honeysuckle v. Curtis H.
Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64. However, we
have made exceptions where it is plain that the Act does not
provide a remedy for the claim. For instance, in
Travelers Insurance Co. v. Smith, 329 Ark. 336, 947
S.W.2d 382 (1997), the widow of an employee killed in a
work-related accident sued the employer's compensation
carrier in the circuit court for the emotional distress
caused by its mishandling of her late husband's remains.
The carrier sought a writ of prohibition in this court
contending that the lawsuit was barred by the
exclusive-remedy doctrine. We denied the writ and allowed the
case to go forward in the circuit court, framing the issue as
"whether the lack of a remedy answers the jurisdictional
question." Travelers, 329 Ark. at 343, 947
S.W.2d at 385. We held that the cause of action was premised
on a nonphysical injury, which is not covered under the Act,
and because the injury was beyond the scope of coverage under
the Act, it was not barred by the exclusive-remedy provision.
in Davis v. Dillmeier Enterprises, Inc., 330 Ark.
545, 956 S.W.2d 155 (1997), the employee suffered a
compensable injury for which benefits were paid. Once she
received a release from treatment, she reported for work but
was promptly fired. The employee then filed suit in the
circuit court asserting a cause of action for discrimination
based on physical disability under the Arkansas Civil Rights
Act. Citing Travelers, supra, we observed
that "in determining whether an action involving a
work-related injury may be filed in circuit court, an
important consideration is whether the Workers'
Compensation Act provides a remedy to the plaintiff."
Davis, 330 Ark. at 554, 956 S.W.2d at 159. We
concluded that the Act did not provide a remedy for an
employee who is terminated from his or her job on the basis
of a disability. Consequently, we held that the
exclusive-remedy provision did not preclude the employee from
bringing a civil-rights action in the circuit court grounded
on the employer's alleged discrimination in terminating
the employee based on her permanent restrictions and
reached a similar result in Automated Conveyor Systems,
Inc. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005).
There, the employee suffered a gradual-onset injury caused by
heavy lifting. He presented a claim for workers'
compensation that was denied because the Act covered only
gradual-onset injuries caused by rapid and repetitive motion.
The employee then sued his employer in the circuit court.
When the circuit court denied the employer's motion to
dismiss based on the exclusive-remedy provision, the employer
filed a petition for writ of prohibition in this court. We
held that the exclusive-remedy provision did not bar the
employee's cause of action because the injury did not
meet the definition of a compensable injury and thus the
employee did not have a remedy under the Act.
agree with the estate that the common thread running through
these decisions is that an employee may bring suit against
his or her employer when there is no remedy available under
the Act. Thus, the question here is whether Hendrix had a
remedy pursuant to the Act.
treatise, Professor Larson draws a distinction "between
an injury which does not come within the fundamental coverage
provisions of the act, and an injury which is in itself
covered but for which, under the facts of the particular
case, no compensation is payable." 9 Lex K. Larson,
Larson's Workers' Compensation pt. ...