Arkansas Department of Correction v. Jennings , 2017 Ark. App. LEXIS 482 ( 2017 )

Cite as 2017 Ark. App. 446
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-105
Opinion Delivered September 13, 2017
ARKANSAS DEPARTMENT OF
CORRECTION AND ARKANSAS APPEAL FROM THE ARKANSAS
INSURANCE DEPARTMENT, PUBLIC WORKERS’ COMPENSATION
EMPLOYEE CLAIMS DIVISION COMMISSION
APPELLANTS [NO. G504734]
V.
CHRISTIE DAWN JENNINGS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellants, Arkansas Department of Correction (ADC) and the Public Employee
Claims Division of the Arkansas Insurance Department (collectively referred to throughout
as appellants), appeal the decision of the Arkansas Workers’ Compensation Commission (the
Commission) reversing the Administrative Law Judge’s (ALJ) decision and awarding appellee,
Christie Dawn Jennings, benefits under Arkansas Code Annotated section 11-9-505(a) (Repl.
2002). We affirm.
On April 20, 2015, Jennings began working as a correctional officer at the East
Arkansas Regional Unit of the ADC (commonly known as the Brickeys Unit). On June 29,
2015, Jennings was serving food in the barracks when she slipped on the wet floor and twisted
her right knee. She alerted a coworker to the injury, and her coworker contacted the lieutenant.
The lieutenant and the sergeant came down to the barracks and instructed Jennings to fill out
an injury report, which she did. They then sent her to see Dr. James Jacobs in Wynne, and she
Cite as 2017 Ark. App. 446
was seen by Dr. Jacobs that day. Dr. Jacobs diagnosed her with a “sprain of right knee” and
wrote that she was “unable to work.” The ADC paid temporary total-disability benefits
beginning June 30, 2015. On July 1, 2015, an MRI on Jennings’s knee revealed “edema
surrounding the superficial MCL, suggesting a grade I sprain” and “[p]atellofemoral and
medial femorotibial compartment chondromalacia” with “small knee joint effusion.” At a
follow-up appointment on July 6, Dr. Jacobs again found that Jennings could not work. On
July 13, Dr. Jacobs recommended that Jennings “wear knee brace, return to work 7/14/15.”
It is undisputed that the ADC paid temporary total-disability benefits through July 13, 2015.
Jennings then returned to restricted work at the Brickeys Unit. She performed restricted
duties for one month, working in the isolation area. She sat at a desk in a guard station and
kept a log of who entered and exited the building. Although the general policy was to rotate
employees to new work assignments every two weeks, Jennings worked the desk in isolation
for a month while her knee continued to heal. On or about August 4, 2015, Jennings was
rotated to a patrol position in the barracks. Jennings testified that the patrol job required a
significant amount of walking and climbing stairs, which she had not done since her injury.
She testified that when she woke up on the morning after her first day on patrol duty, her knee
was severely swollen and she could not walk. She immediately called both her lieutenant and
the ADC’s designated contact person for workers’-compensation claims, Rudy Bischof (whom
she could not reach). Jennings then went to see a doctor, who took her off work for a week
due to the swelling in her knee. Bischof returned Jennings’s phone call and instructed her to
see Dr. Jacobs, which she did. Dr. Jacobs put Jennings on light duty from August 12 until she
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could be seen by an orthopedic surgeon, Dr. Guinn, on August 26. It is undisputed that the
ADC reinstated temporary total-disability benefits on August 6.
On August 26, Dr. Guinn performed an MRI, diagnosed Jennings with a “Grade I
MCL,” and prescribed physical therapy, a new knee brace, and “sitting duty” at work. Because
the ADC had a policy of periodically rotating employees to different positions, it did not put
her on a desk job such as the one she had just completed. Jennings was told that there were
no light-duty positions available, and then on August 31, 2015, the ADC terminated Jennings’s
employment, stating that she was not a “qualified employee” under the Family Medical Leave
Act (FMLA). Jennings’s termination letter stated that once she had recovered and could
perform all necessary job functions, she could reapply for her job and would be “considered
for rehire.” It is undisputed that the ADC continued to pay Jennings’s temporary total-
disability benefits until she reached maximum medical improvement and was released by Dr.
Guinn to return to full duty. 1
On November 12, Jennings’s attorney corresponded with the ADC counsel and
demanded that Jennings be reinstated to her previous position, with all benefits, rank, pay,
seniority, etc., as it was before she was terminated. The ADC refused to reinstate Jennings.
Jennings filed a claim for additional compensation for a period beginning November
9, 2015, pursuant to Arkansas Code Annotated section 11-9-505 due to the ADC’s refusal to
return her to work. The ADC controverted the claim. After a hearing, the ALJ ruled in favor
of the ADC, finding that Jennings had not proved that she was entitled to benefits. In an
1The
ADC paid benefits until November 8, 2015. Jennings was released to return to
work on November 9, 2015.
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opinion dated October 25, 2016, the Commission reversed the ALJ and awarded Jennings
benefits under section 11-9-505. The Commission awarded Jennings her average weekly wages
for a period beginning November 10, 2015, and not exceeding one year, benefits not to be
subtracted.
In appeals from the Arkansas Workers’ Compensation Commission, we review the
evidence and all reasonable inferences deducible therefrom in the light most favorable to the
Commission’s findings, and we must affirm if those findings are supported by substantial
evidence. Mullin v. Duckwall Alco, 2016 Ark. App. 122, 484 S.W.3d 283. The issue on appeal is
not whether the appellate court would have reached a different result or whether the evidence
could support a contrary finding; if reasonable minds could reach the Commission’s
conclusion, we must affirm. Id.
Arkansas Code Annotated section 11-9-505(a)(1) states:
Any employer who without reasonable cause refuses to return an employee who is
injured in the course of employment to work, where suitable employment is available
within the employee’s physical and mental limitations, upon order of the Workers’
Compensation Commission, and in addition to other benefits, shall be liable to pay to
the employee the difference between benefits received and the average weekly wages
lost during the period of the refusal, for a period not exceeding one (1) year.
Ark. Code Ann. § 11-9-505 (Repl. 2002).
On appeal, appellants argue that the Commission erred because (1) Davis v. Dillmeier,
330 Ark. 545, 956 S.W.2d 155 (1997), interpreted subsection 505(a) as not allowing for
additional benefits when the claimant was no longer receiving workers’-compensation
benefits; (2) Jennings had not proven her entitlement to 505(a) benefits; (3) the Commission
awarded a full year of benefits to Jennings despite the fact that a full year had not yet elapsed
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at the time of the ruling; and (4) the Commission awarded her 505(a) benefits without
subtracting any other benefits, when there was evidence that she received unemployment.
Appellants argue that Davis is controlling and prohibits an award of 505(a) benefits in
this case. In Davis, the Arkansas Supreme Court held that a claimant who was no longer
receiving workers’-compensation benefits for disability was not entitled to benefits under
subsection 505(a) because the statute allows for 505(a) benefits “in addition to other benefits.”
Ark. Code Ann. § 11-9-505(a)(1). However, Davis has been narrowed and distinguished by
subsequent cases, which noted that Davis was not a workers’-compensation case but was
instead a civil rights case originating in circuit court. See, e.g., Clayton Kidd Logging Co. v. McGee,
77 Ark. App. 226, 230, 72 S.W.3d 557, 559 (2002). In fact, in Davis, the court specifically
addressed whether the claims arose under subsection 505(a) and instead found that “this case
presents an issue of employer discrimination, rather than a situation where the employer has
refused to return the injured employee to work.” Davis v. Dillmeier Enters., Inc., 330 Ark. 545,
551, 956 S.W.2d 155, 158 (1997).
In Clayton Kidd Logging, we affirmed the Commission’s award of 505(a) benefits, even
though McGee was not receiving workers’-compensation disability benefits, saying
conclusively that “Davis is not applicable to the case at hand,” in part because Davis is legally
distinguishable as a civil-rights case and in part because Cynthia Davis had returned to work
while she was receiving medical treatment and was later terminated only after she had fully
concluded her workers’ compensation claim, making the case factually distinguishable. Clayton
Kidd Logging Co., 77 Ark. App. at 230, 72 S.W.3d at 560. Finally, in Clayton Kidd Logging we relied
on Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), a workers’-
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compensation case in which we held that, before section 11-9-505(a) benefits may be awarded,
several requirements must be met: the employee must prove by a preponderance of the
evidence (1) that he has sustained a compensable injury, (2) that suitable employment that is
within his physical and mental limitations is available with the employer, (3) that the employer
refused to return him to work, and (4) that the employer’s refusal to return him to work is
without reasonable cause. Notably, the Torrey factors do not include any inquiry into whether
the claimant is also receiving disability benefits. In Torrey, and again in Clayton Kidd Logging, we
explained that “the legislative intent that the injured worker be allowed to reenter the work
force permeates the language of sections of the Act.” Torrey, 55 Ark. App. at 230, 934 S.W.2d
237, 239 (1996).
In the present case, appellants are attempting to resurrect an argument we have
previously considered and rejected. We again hold that Davis is distinguishable from workers’-
compensation cases such as Torrey and Clayton Kidd Logging, and it provides no basis for reversal
in the present case. An award of workers’-compensation disability benefits is not a statutory
prerequisite to an award of 505(a) benefits.
Appellants also argue that Jennings failed to prove that she was entitled to 505(a)
benefits under the Torrey factors. As discussed above, Torrey established a four-prong test for
awarding such benefits. Here, appellants do not challenge the first two factors, but they argue
that the ADC did not refuse to return Jennings to work because it told her she could reapply
for a position when she recovered and that its decision was not without reasonable cause.
First, we note that, even while recovering from her injury, Jennings could have, and
tried to, return to work. Despite the ADC’s contention that Jennings was “off work with no
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return date,” Jennings had not been completely taken off work by her physician, she was
simply given a work restriction of light or “sitting” duty. While the ADC told her that no light-
duty positions were available, the evidence reveals that she had previously been given such a
position, working at a desk in the isolation area for approximately a month. While the ADC
has an internal policy of rotating workers to new assignments every two weeks, it is
disingenuous for ADC to argue that light-duty work was not available to Jennings. Such work
clearly existed within the scope of Jennings’s employment.
However, Jennings only sought and was awarded 505(a) benefits for ADC’s refusal to
put her back to work when she fully recovered from her injury and could work without medical
restriction. ADC contends that it did not refuse to return Jennings to work because it told her
that she could reapply for an ADC job once she recovered. Jennings’s counsel demanded
reinstatement to her previous position, which the ADC refused. We agree with the
Commission’s findings that allowing an injured employee to “reapply” and “be considered”
for employment is not sufficient to meet the statutory requirement that the employer return
the employee to work. That is because the option to “reapply” and “be considered” for
employment necessarily involves an element of uncertainty as to the outcome of the
application process. Moreover, even if Jennings were rehired, she would have lost credit for
the time she had successfully worked during her probationary period, requiring her to start
anew. Both the plain language of the statute and its recognized purpose focus on returning an
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injured employee to work, and we agree with Jennings that reinstatement, rather than
reapplication, was required. 2
Similarly, we reject the ADC’s argument that Jennings failed to prove the fourth Torrey
prong because her failure to reapply for ADC employment gave the ADC “reasonable cause”
not to return her to work. As discussed above, reapplication is not the equivalent of
reinstatement, and the record clearly shows that Jennings’s attorney made a formal demand
for reinstatement, which the ADC refused.
The ADC also argues that Jennings is not entitled to benefits under subsection 505(a)
because, as a probationary employee, she was not protected by the Family and Medical Leave
Act (FMLA), 29 U.S.C. § 2601 et seq. The ADC claims that it cannot be held liable for abiding
by the federal policy codified in the FMLA. This argument is unpersuasive. While it is true
that Jennings was not covered under the FMLA’s job-protection provisions, she is not seeking
a remedy under the FMLA. Instead, Jennings properly claimed that she was entitled to benefits
under Arkansas workers’-compensation law. For Arkansas workers who are injured on the
job, subsection 505(a) provides job protections apart from, and in addition to, what the federal
government provides pursuant to the FMLA. Simply put, the FMLA is irrelevant to the case
at bar. While the ADC was not required to hold Jennings’s job and reinstate her under the
2The cases on which appellants rely are distinguishable: they deal with the
reasonableness (fourth Torrey prong) of the employer’s refusal to hire the claimant for a
different position when the claimant could no longer perform his or her previous work, see
Miner v. Yellow Transp., Inc., 2009 Ark. App. 197, 301 S.W.3d 12; Lepel v. St. Vincent Health Servs.,
96 Ark. App. 330, 333, 241 S.W.3d 784, 787 (2006), or where the employer provided a work
accommodation and the claimant was terminated for other reasons, see Robertson v. Pork Group,
Inc., 2011 Ark. App. 448, 383 S.W.3d 639. Appellants have neither cited, nor have we found,
any case holding that designating an employee as “eligible to reapply” for her previous position
generally satisfies subsection 505(a)’s reinstatement requirement.
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FMLA, it is required to do so under subsection 505(a) of the Arkansas Code. Our state
legislature has deemed it appropriate to grant enhanced job protections for those who are
injured on the job, beyond what the FMLA generally provides for all covered employees.
Additionally, the ADC’s argument that interpreting subsection 505(a) in this way
violates our state’s employment-at-will doctrine is misguided. While it is true that Arkansas is,
by common law, an employment-at-will state, a common-law doctrine cannot override the
clear and specific enactments of the Arkansas General Assembly in passing Arkansas Code
Annotated section 11-9-505(a). It is a basic rule of statutory construction that we are to give
effect to the intent of the legislature by giving words their usual and ordinary meaning. Ark.
Soil & Water Conservation Comm’n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002). As
former Chief Justice Howard Brill notes in Arkansas Law of Damages, “[t]he public policy
exception to the at-will doctrine prevents employees from being discharged in violation of a
well-established and substantial public policy of the state. Public policy is established by the
Constitution and statutes.” Howard W. Brill & Christian H. Brill, Arkansas Law of Damages, §
19:2 (6th Ed. 2014).
The ADC next argues that it was error for the Commission to award benefits for a full
year, when a full year had not yet elapsed since the date Jennings demanded and was denied
reinstatement. However, the Commission’s order specifically states that “In accordance with
the Court’s holding in Torrey, the claimant is entitled to continuing additional benefits
beginning November 10, 2015 for a period not exceeding one year.” Just as the Commission
did not, in its written opinion, actually calculate her average weekly wage, it did not specify
that she should be paid that wage for a full year, but instead simply cited to Torrey and the
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statute for the principle that the benefits cover the period in which the employer refuses to
reinstate the claimant up to a year.
The ADC’s last argument is that the award of 505(a) benefits should have been reduced
to reflect evidence that Jennings received unemployment benefits during the period covered
by the award. This issue was not presented to the Commission as a question to be litigated in
this case, and the Commission made no specific findings on this topic. Moreover, the
argument is undeveloped on appeal; the ADC has provided no legal citations on which we
could base a reversal. To the extent that the ADC appears to rely on a separate workers’-
compensation statute, Arkansas Code Annotated section 11-9-506(a), which prohibits the
award of disability benefits for any week that an injured employee receives unemployment
benefits, that statute is not applicable here because 505(a) benefits are not disability benefits.
Alternatively, to the extent that the ADC is arguing that unemployment benefits are
contemplated under subsection 505(a)’s language allowing a claimant to recover “the
difference between benefits received and the average weekly wages lost during the period of
the refusal,” the Commission did not make any finding that Jennings was receiving benefits of
any kind, and the ADC argued below and on appeal that she was not. 3
Affirmed.
KLAPPENBACH and MURPHY, JJ., agree.
Charles H. McLemore Jr., Public Employee Claims Division, for appellant.
Matthew, Sanders & Sayes, P.A., by: William Ray Sanders, for appellee.
3Specifically,
appellants argued that Jennings was not entitled to 505(a) benefits under
Davis because she was not receiving workers’-compensation benefits. It did not address how
or if unemployment benefits would have factored into that analysis.
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