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Herrera-Larios v. EL Chico 71

Court of Appeals of Arkansas, Division I

November 29, 2017

JESUS HERRERA-LARIOS (DECEASED) APPELLANT
v.
EL CHICO 71, TRAVELERS INSURANCE COMPANY, AND DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G203118]

          Hancock Law Firm, by: Charles D. Hancock, for appellant.

          David L. Pake, for appellee Death & Permanent Total Disability Trust Fund.

          Friday, Eldredge & Clark, LLP, by: James M. Simpson, Guy Alton Wade, and Phillip M. Brick, Jr., for appellees El Chico 71, Consolidated Restaurant Operations, Inc., El Chico Restaurants of America, Inc., and Michael Easley.

          LARRY D. VAUGHT, JUDGE.

         Representatives for the decedent Jesus Herrera-Larios (Herrera) appeal the opinion of the Arkansas Workers' Compensation Commission (Commission) finding that Herrera was killed during and in the course and scope of his employment with El Chico 71, El Chico of America, and Consolidated Restaurant Operations (collectively El Chico). Based on this finding, the Commission further found that El Chico was protected by the Arkansas Workers' Compensation Act's (Act) exclusive-remedy provision of Arkansas Code Annotated section 11-9-105 (Repl. 2012). On appeal, Herrera's representatives contend that the Commission's compensability decision is not supported by substantial evidence and that the Act's exclusive-remedy provision does not apply. We affirm.

         Herrera, an employee of El Chico, was tragically shot and killed during an armed robbery at the restaurant on April 15, 2012. The administrator of Herrera's estate filed a wrongful-death action against El Chico and other defendants. El Chico answered and affirmatively pled that Herrera's claim was covered under the Act; the Act was Herrera's only avenue for recovery against El Chico; and the civil action was barred by the exclusive-remedy provision found in Arkansas Code Annotated section 11-9-105(a).[1] In the civil action, El Chico also filed a motion for a stay to seek an employment determination from the Commission, which the circuit court granted.

         Thereafter, Herrera's representatives filed a claim with the Commission. A prehearing order was entered wherein the parties stipulated that the Commission had jurisdiction of the claim; that Herrera was an employee of El Chico; that he was killed on April 15, 2012; and that Herrera's claim was accepted as compensable by El Chico.[2] The issue to be litigated was whether Herrera was killed in the course and scope of his employment giving the Commission exclusive jurisdiction.

         A hearing was held before an administrative law judge (ALJ) on April 13, 2016. The only witness to testify at the hearing was Michael Easley. Easley stated that on April 15, 2012, he was the general manager of El Chico. Easley said that he supervised Herrera, who was a server at El Chico, and that Herrera arrived at El Chico for work on April 15 around 4:00 or 5:00 p.m. According to Easley, El Chico closed at 9:00 p.m.; however, Herrera's duties would not have ended when the customers left the restaurant. Easley testified that Herrera would have been responsible for disassembling the salad-dressing and beverage carts, cleaning, sweeping, and restocking. Easley said that Herrera would have also been responsible for giving Easley a printout of his daily sales along with his cash before he clocked out. Easley stated that Herrera did not complete those tasks on April 15, 2012.

         Easley stated that on the night in question, he was in the back of the restaurant preparing for closing when another El Chico employee, Tyrone Barbee, ran into the kitchen and reported that El Chico was being robbed. Easley said that customers from the dining area of the restaurant also ran into the kitchen. Easley, Barbee, and the customers went into the walk-in cooler and held the door shut. Easley testified that while inside the cooler he heard gunshots in the restaurant. After some time, Barbee left the cooler to see if the robbers had left. Barbee reported that the robbers were gone. Easley said that he and the restaurant customers left the cooler and saw Herrera on the floor inside the restaurant. He was dead. Easley stated that there were bullet holes in the door to the manager's office where the safe was located. He also said that $1, 200 had been stolen from the safe. Easley testified that Kiywuan Perry and Zeckeya Perry were subsequently convicted of aggravated robbery of El Chico and capital murder for the shooting death of Herrera. The Perry brothers were also employees of El Chico; however, they were not on duty on April 15. Easley testified that he was not aware of any animosity between Herrera and the Perry brothers.

         Tyrone Barbee testified at the criminal trials of Kiywuan Perry and Zeckeya Perry, and the transcripts of Barbee's testimony were introduced into evidence at the workers'-compensation hearing. Barbee testified that he was working on the night of April 15, 2012. He said that he stepped outside the restaurant for a break shortly before closing when the Perry brothers approached him.[3] Kiywuan Perry pointed a gun at Barbee and ordered him back inside El Chico. Barbee stated that Zeckeya Perry slipped and fell at which time Barbee ran toward the back of the restaurant and into the kitchen. Barbee testified that as he was running back to the kitchen, he ran past Herrera, who was behind the bar taking an order from a customer. Barbee said that was the last time he saw Herrera alive.[4] Barbee testified that he was not aware of any animosity between Herrera and the Perry brothers.

         On June 30, 2016, the ALJ issued an opinion finding that the preponderance of the evidence established that Herrera was killed during and in the course and scope of his employment. The ALJ specifically found that at the time of Herrera's death, Herrera was an employee; he was last seen working behind the bar, serving a customer; he had not clocked out from his shift; he had job duties remaining before he would have clocked out; he was shot and killed inside the restaurant; there was no evidence of a personal dispute between Herrera and the Perry brothers; and the Perry brothers were charged with and convicted of aggravated robbery, which established their intent to rob the restaurant. The ALJ stated, "To summarize, the preponderance of the evidence shows that [Herrera's] death occurred within the time and space boundaries of his employment with El Chico, when he was carrying out the employer's purpose and advancing the employer's interests." The ALJ further found that El Chico was "protected by the exclusive remedy provision of the Arkansas Workers' Compensation Act."

         Herrera's representatives appealed. On February 23, 2017, the Commission affirmed and adopted the ALJ's opinion. This appeal followed. Herrera's representatives challenge the Commission's compensability decision, arguing that substantial evidence does not support the finding that Herrera's death arose out of and in the course of his employment.[5]

         When reviewing a decision from the Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Swaim v. Wal-Mart Assocs., Inc., 91 Ark.App. 120, 122-23, 208 S.W.3d 837, 839 (2005). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. at 123, 208 S.W.3d at 839. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. at 123, 208 S.W.3d at 839. When the Commission denies a claim because of the claimant's failure to meet his ...


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