State News : Arkansas

On November 6, 2024, the Arkansas Court of Appeals ruled that the Arkansas Workers’ Compensation Commission does not have authority under Ark. Code Ann. §11-9-511(a) to compel a claimant to undergo a Functional Capacity Evaluation (“FCE”) at the sole request of respondents when work restrictions and impairment ratings had already been provided by the claimant’s treating physician at the time the claimant was released at maximum medical improvement (“MMI”). Leaf Home Solutions v. Kunkel, 2024 Ark. App. 547. 

In Leaf Home Solutions, the respondents filed a Motion to Compel with the presiding Administrative Law Judge (“ALJ”) requesting that he use his authority under A.C.A. §11-9-511(a) to compel the claimant to submit to a post-operative FCE which respondents argued was reasonable and necessary to objectively assess and validate physical restrictions and impairment ratings provided by Claimant’s treating physician. The ALJ reviewed the limited medical records and ultimately determined he would need to gather more information regarding the Claimant’s physical restrictions and impairment because he felt that Claimant’s treating physician failed to sufficiently explain the basis for the assigned impairment ratings, and that such ratings were therefore conclusory. In his Order compelling the claimant to submit to the FCE, the ALJ stated it was well settled that the Commission could require a claimant “to submit to such examinations as may be necessary to assist the trier of fact in determining the extent of a claimant's permanent impairment as well as his entitlement to wage-loss disability benefits.” Id. at 4.

Claimant appealed the ALJ’s Order, which the Commission reversed and vacated upon finding that A.C.A. §11-9-511(a) does not grant the Commission authority to compel a claimant to undergo an FCE at the sole request of respondents. In its Opinion affirming the Commission’s decision, the Arkansas Court of Appeals applied a strict construction analysis and found: (1) that the ALJ exceeded his authority under A.C.A. §11-9-511(a) when he ordered the claimant to submit to an FCE that had neither been recommended nor requested by the Claimant’s treating physician, the ALJ or the Commission; and, (2) that an FCE performed by a functional testing center does not constitute the type of physician-performed medical examination or medical treatment contemplated in §511. Further, after reviewing the two cases, North Hills Surgery Center v. Otis, 2021 Ark. App. 468, 638 S.W.3d 323, and Eldridge v. Pace Industries, LLC, 2021 Ark. App. 245, 625 S.W.3d 734, which the ALJ had cited in arguing that FCE’s are commonly used to assess permanent impairment and physical restrictions where medical evidence is conclusory, the Court of Appeals rejected the ALJ’s interpretation and stated that both cases were distinguishable because the parties were not disputing the necessity of an FCE in either case.

In Melton v. Clarksville Sch. Dist., 2023 Ark. App. 282, the Arkansas Court of Appeals considered an appeal and cross-appeal from a decision by the Arkansas Workers' Compensation Commission to award Judy Melton permanent disability benefits for a four percent impairment to her cervical spine and five percent wage-loss disability. On appeal, the claimant contended the Commission should have credited her treating orthopedist’s opinion that she suffered an eight percent cervical impairment, nine percent to her lumbar spine, and five percent for a brain injury. Her employer accepted the four-percent neck impairment, but controverted everything else, including the wage-loss award.

As to the wage-loss award, the Court noted that it reviews the Commission's findings about wage-loss disability for substantial evidence. It also noted that determining wage-loss disability is a “fact intensive” inquiry that calls for the Commission to consider a number of factors.  “As the number of factors the Commission can consider increases, the number of unique combinations of factors increases exponentially. Determining that "no fair-minded person" could have made the wage-loss award requires us to consider every combination of factors the Commission could have weighed and every combination of ways it could have weighed them.”  As such, the Court of Appeals found that unless the Commission recites an improper basis for its award, “the appropriateness of a particular award is beyond meaningful review.”

CHI St. Vincent Infirmary v. McCauley, 2023 Ark.App. 126. 

• Claimant injured her hip and back after tripping on a sidewalk at work. The employer denied the claim as compensable on the grounds that she was not performing employment services at the time of the injury. Claimant was a nurse supervisor whose office was not equipped with basic office supplies, but she had the option of ordering supplies through the department secretary. Instead, because it was unclear when she would receive those supplies, she decided to purchase her own supplies and bring them to the office in her car. On her lunch break, she went to her car to retrieve the items and tripped on the sidewalk. The ALJ found that the Claimant was going to her car for her own sole benefit and convenience because she was retrieving nonessential, nonwork related items.

• The Full Commission reversed the ALJ, finding that the Claimant was performing duties which at least indirectly benefitted the employer. 

• On appeal from the employer, the Court of Appeals affirmed. The Court cited case law stating that an injury suffered by an employee while on break is compensable if the employer has imposed some duty or requirement on the employee to be fulfilled during a break. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). The Court pointed to Claimant’s testimony that, as a nurse supervisor, she was still “technically on duty” and subject to being called back to work during her lunch break despite the employer noting it would be “very unusual.”

Two Separate Statute of Limitations in One Claim – Medical and Indemnity SoLs Run Independently

Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, 2022 Ark. 65, 641 S.W.3d 621

The court held that under the plain reading of the statute, the statute of limitations on a request for additional benefits commences with the last payment, whether for disability or medical benefits, is made. The court then went on to overrule Kirk v. Cent. States Mfg. to the extent that the case held that the statute of limitations on a claim for additional benefits commences upon last payment of a specific type of benefits sought, rather than from the date of the last payment of compensation.

Cosner v. C&J Forms & Labels Co., 2021 Ark. App. 453 (Ct. App.)

In applying the decision in Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, the Arkansas Court of Appeals found the Worker's Compensation Commission incorrectly ruled that claim for additional PPD benefits was barred by the statute of limitations under Ark. Code Ann. § 11-9-702(b) because the claim was filed within one year of the last payment in the form of medical-treatment benefits. There was no requirement that the benefits that had been paid be the same type of benefits being sought.

Slaughter v. City of Fayetteville, 2022 Ark. App. 139, 643 S.W.3d 809 (Ct. App.)

The Arkansas Court of Appeals clarified that the applicable date for the purpose of the statute of limitations is the date of the furnishing of medical services, not the payment therefor, that constituted payment of compensation regarding a claimant's medical benefits. Additionally, the Court held voluntary payments do not revive a claim in which the statute of limitations has run.

In the most recent special session of the Arkansas legislature, an Act was passed ending claims against the Death and Permanent Total Disability Trust Fund effective June 30, 2019.   Prior to that date, death and PTD exposure for carriers and self-insured employers is capped with any additional benefits being paid by the state Fund.  

Arkansas is not unlike many states in that a compensable injury is one that arises out of and in the course of employment, but it does not include one that is inflicted on an employee at a time when employment services are not being performed.  However, the Arkansas Workers' Compensation Act does not define the phrase “in the course of employment” or the term “employment services.”  Rather, the Arkansas appellate courts must define these terms in a manner that is compatible with the strict construction required of the Workers' Compensation Act.  The courts have held, a number of times, that the test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer's purpose or advancing the employer's interest directly or indirectly. The inquiry depends on the particular facts and circumstances of each case.

In fleshing out this issue, and because of the fact intensive nature of the inquiry, Arkansas courts and the Workers’ Compensation Commission, have been all over the board.  In most instances, one can find case law to support both sides of a given “employment services” case.  However, there certainly seems to be trend toward expanding the activities that are considered to be within the boundaries of employment. A recent opinion inRazorback Concrete v. Perkins, 2015 Ark. App. 368 (2015), reh'g denied (July 22, 2015) illustrates this point.

Perkins was a ten year employee of Razorback. At approximately 4:30 a.m. on March 11, 2013, Perkins reported to his job as a tanker-truck driver. He was dispatched from the company's West Memphis facility, and drove to a Memphis facility to be loaded with raw cement. From there, Perkins drove to the company's Blytheville facility for unloading, arriving shortly before 6:35 a.m. The employee responsible for unlocking the facility gates had not arrived to open them.

While waiting for the facility to be opened, Perkins drove a half mile to the only convenience store in that area. Perkins was not required to clock out. He was on paid company time and was not breaking any company policy by going to the convenience store. Perkins parked the truck on the shoulder of the road, directly across a five-lane highway from the store. He crossed the highway on foot, entered the store, bought a breakfast sandwich, and left to return to his truck. As Perkins attempted to cross the highway, he was struck by a vehicle and died a few hours later. The police report and death certificate recited the time of the accident as 6:44 a.m.  The death certificate also listed this as an accident occurring at work.

Perkins was responsible for the security and maintenance of the truck and its load while he was driving.  Razorback's area manager testified that the Blytheville plant opens between 6:30 and 7:00 a.m., not a set time. The manager stated that Perkins was never advised to refrain from stopping on his driving route and was actually allowed to stop as needed. Perkins was not instructed on what to do if he found the facility gates locked. The manager explained that Perkins was not doing anything prohibited by going to the convenience store that morning.

On appeal, Razorback argued that Perkins was not back in his truck or on company property at the time he was killed. Razorback also argued that Perkins was on a purely personal deviation from his work at the time of his injury. The Court of Appeals did not agree.  The Court found that the Commission’s determination that Perkins was on paid company time, responsible for his truck during his workday, a half mile away from the employer's locked and gated facility, and returning to work after this permissible deviation had been completed was not erroneous because reasonable minds could conclude as the Commission did.  “Whatever ‘employment services’ means must be determined within the context of individual cases, employments, and working relationships, not generalizations made devoid of practical working conditions.”

ABOUT THE AUTHOR

This article was written by R. Scott Zuerker, a partner with Ledbetter, Cogbill, Arnold & Harrison, LLP. Ledbetter, Cogbill, Arnold & Harrison is a law firm located in Fort Smith, Arkansas dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and liability matters. Zuerker and his firm are members of the National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Arkansas workers’ compensation issues in general, please feel free to contact the author at rsz@lcahlaw.com or (479)782-7294.