The Arkansas Court of Appeals recently affirmed the Arkansas Workers’ Compensation Commission’s award of additional workers’ compensation benefits to a former employee of the Arkansas Department of Corrections (ADC).
Background
On April 20, 2015, “Dallas” began working as a correctional officer at the East Arkansas Regional Unit of the ADC, commonly known as the Brickeys Unit. On June 29, Dallas slipped on the wet floor of the barracks and twisted her right knee. She filled out an injury report and saw Dr. “Smith” the same day.
Smith diagnosed Dallas with a “sprain of [the] right knee” and wrote that she was “unable to work.” The ADC began paying her temporary total disability (TTD) benefits on June 30. After an MRI and a follow-up appointment, Smith again found that Dallas couldn’t work and recommended that she “wear [a] knee brace, [and] return to work 7/14/15.”
Dallas returned to restricted work at the Brickeys Unit. Although it was ADC policy to rotate employees to new work assignments every 2 weeks, she worked at a guard desk for a month while her knee continued to heal.
Around August 4, she was rotated to a patrol position in the barracks, which required a significant amount of walking and climbing stairs. The day after her first day on patrol, her knee was severely swollen and she couldn’t walk. Smith put her on light duty from August 12 until she could be seen by an orthopedic surgeon on August 26. The ADC reinstated her TTD benefits on August 6.
On August 26, Dallas was diagnosed with a sprain “Grade I MCL” and prescribed physical therapy, a new knee brace, and “sitting duty” at work. Because of its policy of rotating employees, the ADC didn’t put her on a desk job. She was informed that there were no light-duty positions available. Then, on August 31, the ADC terminated her employment, stating that she wasn’t a “qualified employee” under the Family and Medical Leave Act (FMLA).
Dallas’ termination letter stated that once she had recovered and could perform all the necessary job functions, she could reapply for her job and would be “considered for rehire.” The ADC payed her TTD benefits until she reached maximum medical improvement and was released to return to full duty. On November 12, her attorney demanded that she be reinstated to her previous position, with the same benefits, rank, pay, and seniority she had before she was terminated. The ADC refused to reinstate her.
Dallas filed a claim for additional workers’ comp benefits beginning November 9, 2015, under Section 11-9-505 of the Arkansas Code, based on the ADC’s refusal to return her to work. An administrative law judge (ALJ) ruled in favor of the ADC, but the Workers’ Compensation Commission reversed the ALJ and awarded Dallas benefits under Section 505(a), including average weekly wages not exceeding 1 year. The ADC appealed.
Arkansas Court of Appeals’ Opinion
On appeal, the court explained that Section 505(a) provides additional workers’ comp benefits to an employee injured in the course of her employment if the employer, without reasonable cause, refuses to reinstate her when suitable employment is available. The ADC presented several arguments supporting its contention that Dallas wasn’t eligible for additional benefits.
Other benefits not required. First, the ADC argued that the case of Davis v. Dillmeier prohibited an award of benefits in this case. In Davis, the Arkansas Supreme Court held that a claimant who was no longer receiving workers’ comp for a disability wasn’t entitled to benefits under Section 505(a) because the statute allows for Section 505(a) benefits “in addition to other benefits.”
However, the court of appeals pointed out that subsequent cases have noted that Davis wasn’t even a workers’ comp case—it presented an issue of employment discrimination rather than a situation in which the employer refused to return the injured employee to work.
The court explained that before Section 505(a) benefits may be awarded, the employee must prove that (1) she sustained a compensable injury, (2) suitable employment within her physical and mental limitations is available, (3) the employer refused to return her to work, and (4) its refusal to return her to work was without reasonable cause.
Notably, those factors don’t include any inquiry into whether the employee is also receiving disability benefits. Accordingly, the court concluded that an award of workers’ comp disability benefits isn’t a statutory prerequisite to an award of Section 505(a) benefits.
Failure to return to work. The ADC also argued that Dallas failed to prove that she was entitled to Section 505(a) benefits because it didn’t refuse to return her to work. Rather, it told her that she could reapply for a position when she recovered. The ADC maintained that its decision was not without reasonable cause.
According to the court, the option to “reapply” and “be considered” for employment isn’t sufficient to meet the statutory requirement that the employer return the employee to work because it would necessarily involve an element of uncertainty in the outcome of the application process.
Moreover, even if Dallas was rehired, she would lose credit for the time she had worked during her probationary period, requiring her to start anew. Because both the plain language of the statute and its purpose focus on returning an injured employee to work, the court agreed with Dallas that reinstatement, rather than reapplication, was required.
The ADC also argued that Dallas’ failure to reapply gave it reasonable cause not to return her to work. However, the court reiterated that reapplication isn’t equivalent to reinstatement, and the facts clearly showed that Dallas’ attorney made a formal demand for reinstatement, which the ADC refused.
Lack of FMLA coverage. The ADC also argued that Dallas wasn’t entitled to benefits under Section 505(a) because as a probationary employee, she wasn’t protected by the FMLA. The ADC claimed that it couldn’t be held liable for abiding by the federal policy codified in the FMLA.
The court explained that Section 505(a) provides job protections for Arkansas workers who are injured on the job apart from, and in addition to, what the FMLA provides. Although the ADC wasn’t required to hold Dallas’ job open and reinstate her under the FMLA, it was required to do so under Arkansas law.
Additionally, the court deemed the ADC’s argument that such an interpretation of Section 505(a) would violate Arkansas’ employment-at-will doctrine misguided. The employment-at-will doctrine is a common-law doctrine, and it cannot override the clear and specific enactments of the legislature in passing Section 505(a).
Bottom Line
Employees who suffer on-the-job injuries and aren’t covered by the FMLA may still have employment protections under Arkansas workers’ comp law. Simply allowing an injured employee to reapply and be considered for employment won’t satisfy your legal obligations if workers’ comp protections require reinstatement.
Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com.