FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Strong-Garner-Bauer, P.C., by: Steve Garner, Chandler Gregg,
pro hac vice, and Nick Smart, pro hac vice; and Spencer Fane,
LLP, by: Jason C. Smith, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: Sherry P. Bartley and David F. Koehler; and Matthews,
Sanders & Sayes, by: Roy Gene Sanders, for appellee
Smiley Sawmill, LLC.
F. VIRDEN, JUDGE
Don Randall Jackson (deceased), was tragically killed on July
11, 2014, while employed by appellee Smiley Sawmill, LLC.
Jackson's widow, as personal representative of
Jackson's estate, filed a negligence complaint in circuit
court against Smiley Sawmill in August 2016 on the basis of
her belief that Jackson, a truck driver for Smiley Sawmill,
was an independent contractor. The employer had the case
transferred to the Arkansas Workers' Compensation
Commission and maintained that Jackson was an employee.
Jackson contended that the employer should be estopped from
asserting that he was an employee when it had not treated him
and other truck drivers as employees for tax purposes and
workers'-compensation insurance. Following a hearing, an
administrative law judge (ALJ) determined that Jackson was an
employee, and the Commission subsequently affirmed and
adopted that decision. Jackson argues that the Commission erred
by failing to apply the doctrine of preclusion of
inconsistent positions. Because the Commission made no ruling
in that regard, we remand for further findings.
Code Annotated section 11-9-105(a) (Repl. 2012) 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, the employee's legal representative,
dependents, next of kin, or anyone otherwise entitled to
recover damages from the employer. If an employer fails to
secure the payment of compensation as required by this
chapter, an injured employee, or his or her legal
representative in case death results from the injury, may, at
his or her option, elect to claim compensation under this
chapter or to maintain a legal action in court for damages on
account of injury or death. Ark. Code Ann. §
11-9-105(b)(1). In Rankin v. Farmers Tractor &
Equipment Co., 319 Ark. 26, 888 S.W.2d 657 (1994), our
supreme court interpreted the statute to mean that, if there
was an employer-employee relationship and the employer
provided workers'-compensation insurance coverage for its
employees, then compensation is secured. Jackson does not
dispute the fact that Smiley Sawmill had workers'-
compensation insurance coverage on the day of his death. He
contests only that he was covered by the insurance policy as
The Commission's Opinion
Commission issued an opinion in which it considered the
factors set forth in Franklin v. Arkansas Kraft,
Inc., 5 Ark.App. 264, 635 S.W.2d 286 (1982), and
determined that Jackson was an employee, as opposed to an
independent contractor. The Commission further stated,
It is also clear that the respondent did not report the
claimant's work status properly to state and federal
authorities. This clearly may raise other issues. However,
these reports are not dispositive of whether the claimant is
an employee or an independent contractor for workers'
compensation purposes. Our case law is clear that the
determination of employment status should be based on the
factors as spelled out above and not on factors or criteria
from other agencies or taxing authorities.
had argued in his pretrial briefs that the doctrine against
inconsistent positions applied, but the ALJ did not
specifically address that argument. In Jackson's notice
of appeal to the Commission, he argued that the ALJ had erred
by failing to address the doctrine against inconsistent
positions. When a determination by an ALJ is appealed to the
Commission, the Commission does not sit as an appellate court
to review the ALJ's findings; instead, the Commission
makes a de novo determination of the facts. Woods v.
Best Western, 32 Ark.App. 196, 799 S.W.2d 565
(1990). Here, the Commission affirmed and adopted the
ALJ's opinion without addressing the question of whether
the doctrine against inconsistent positions applies. Jackson
contends that he did everything he could to get a ruling on
this issue. We agree.
argues that Smiley Sawmill should have been estopped from
taking the position that he was an employee, given that the
employer had consistently failed to identify him and other
truck drivers as "employees" to taxing authorities
and to its workers'- compensation insurance carrier.
Jackson further contends that the factors in
Franklin, supra, should not have been
considered at all because, if the doctrine against
inconsistent positions applies, Smiley Sawmill is estopped
from now asserting that he was an employee when it had
treated him as an independent contractor.
doctrine against inconsistent positions is a form of estoppel
that prevents an individual from asserting claims that are
inconsistent with the individual's previous positions.
Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464
(2004); Fureigh v. Horn, 2014 Ark.App. 234, 434
S.W.3d 390. In Dupwe, which involved judicial
estoppel, the supreme court noted that judicial estoppel is
characterized as a branch of the doctrine against
inconsistent positions. Id. The court pointed out,
however, that the doctrine against inconsistent positions is
much broader than judicial estoppel, which prohibits a party
from manipulating the courts ...