FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Hancock Law Firm, by: Charles D. Hancock, for appellant.
L. Pake, for appellee Death & Permanent Total Disability
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.
D. VAUGHT, JUDGE.
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.
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). 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.
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. The issue to be
litigated was whether Herrera was killed in the course and
scope of his employment giving the Commission exclusive
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.
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.
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. 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. Barbee testified that he was not
aware of any animosity between Herrera and the Perry
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."
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
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 ...