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.”