Chapter 1 General Provisions

Subchapter 1 — [Reserved.]

11-1-201. Title.

This subchapter shall be known and may be cited as the “Empower Independent Contractors Act of 2019”.

History. Acts 2019, No. 1055, § 1.

11-1-202. Purpose.

The purpose of this subchapter is to help employers create jobs, help individuals return to work and no longer need public assistance, and grow the economy.

History. Acts 2019, No. 1055, § 1.

11-1-203. Definition.

As used in this title, “employment status” means the status of an individual as an employee or independent contractor for employment purposes, including without limitation wages, taxation, and workers' compensation issues.

History. Acts 2019, No. 1055, § 1.

11-1-204. Determination of employment status.

For purposes of this title, an employer or agency charged with determining the employment status of an individual shall use the twenty-factor test enumerated by the Internal Revenue Service in Rev. Rul. 87-41, 1987-1 C.B. 296, in making its determination and shall consider whether:

  1. A person for whom a service is performed has the right to require compliance with instructions, including without limitation when, where, and how a worker is to work;
  2. A worker is required to receive training, including without limitation through:
    1. Working with an experienced employee;
    2. Corresponding with the person for whom a service is performed;
    3. Attending meetings; or
    4. Other training methods;
  3. A worker's services are integrated into the business operation of the person for whom a service is performed and are provided in a way that shows the worker's services are subject to the direction and control of the person for whom a service is performed;
  4. A worker's services are required to be performed personally, indicating an interest in the methods used and the results;
  5. A person for whom a service is performed hires, supervises, or pays assistants;
  6. A continuing relationship exists between a worker performing services and a person for whom a service is performed;
  7. A worker performing a service has hours set by the person for whom a service is performed;
  8. A worker is required to devote substantially full time to the business of the person for whom a service is performed, indicating the person for whom a service is performed has control over the amount of time the worker spends working and by implication restricts the worker from obtaining other gainful work;
    1. The work is performed on the premises of the person for whom a service is performed, or the person for whom a service is performed has control over where the work takes place.
    2. A person for whom a service is performed has control over where the work takes place if the person has the right to:
      1. Compel the worker to travel a designated route;
      2. Compel the worker to canvass a territory within a certain time; or
      3. Require that the work be done at a specific place, especially if the work could be performed elsewhere;
  9. A worker is required to perform services in the order or sequence set by the person for whom a service is performed or the person for whom a service is performed retains the right to set the order or sequence;
  10. A worker is required to submit regular oral or written reports to the person for whom a service is performed;
  11. A worker is paid by the hour, week, or month except when he or she is paid by the hour, week, or month only as a convenient way of paying a lump sum agreed upon as the cost of a job;
  12. A person for whom a service is performed pays the worker's business or traveling expenses;
  13. A person for whom a service is performed provides significant tools and materials to the worker performing services;
  14. A worker invests in the facilities used in performing the services;
  15. A worker realizes a profit or suffers a loss as a result of the services performed that is in addition to the profit or loss ordinarily realized by an employee;
  16. A worker performs more than de minimis services for more than one (1) person or firm at the same time, unless the persons or firms are part of the same service arrangement;
  17. A worker makes his or her services available to the general public on a regular and consistent basis;
  18. A person for whom a service is performed retains the right to discharge the worker; and
  19. A worker has the right to terminate the relationship with the person for whom a service is performed at any time he or she wishes without incurring liability.

History. Acts 2019, No. 1055, § 1.

Subchapter 2 — Empower Independent Contractors Act of 2019

Chapter 2 Department of Labor

Subchapter 1 — General Provisions

Cross References. Administration of act providing for payment of prevailing hourly wage by employers in public works, § 22-9-301 et seq.

Regulation of elevators, escalators, and dumbwaiters, § 20-24-101 et seq.

Effective Dates. Acts 1937, No. 161, § 26: Mar. 1, 1937. Emergency clause provided: “It is found and determined by the General Assembly that the present laws relating to labor in this State are not sufficient to meet present conditions; that in order for the State to coordinate its activities concerning labor with Federal Agencies on unemployment and security benefits, it is necessary that a Department of Labor be created with the powers and duties prescribed by this Bill; therefore, an emergency is hereby declared to exist and this Act shall take effect and be in full force and effect from and after its passage and approval.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1473, § 74: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act includes technical corrects to Act 923 of 2003 which establishes the classification and compensation levels of state employees covered by the provisions of the Uniform Classification and Compensation Act; that Act 923 of 2003 will become effective on July 1, 2003; and that to avoid confusion this act must also effective on July 1, 2003. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Construction.

This subchapter, being a penal measure, must be construed strictly. Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969).

Applicability.

This subchapter does not apply to mines and mining. Barksdale v. Silica Prods. Co., 200 Ark. 32, 137 S.W.2d 901 (1940).

This subchapter held inapplicable where employer-employee relationship was not shown. Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969).

Contractors and Subcontractors.

The enactment of the safety code was not intended to alter the existing law with respect to division of duties and responsibilities between prime and subcontractors, and an injury to an employee of a subcontractor working on property under the exclusive control of the subcontractor is not made the responsibility of the prime contractor by this subchapter. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).

Where an employee of a subcontractor brought an action against the subcontractor and contractor to recover for personal injuries sustained on the job, a Department of Labor safety consultant was not permitted to testify, for the plaintiff was not an employee of either of the defendants when he was injured. Kennedy v. United States Constr. Co., 545 F.2d 81 (8th Cir. 1976).

Instructions.

By its terms, this subchapter applies only to a person having five or more employees, therefore, where there was no proof that defendant had that minimum number of employees, instruction that defendant had control of job and it was his duty to furnish plaintiff with a safe place to work was properly refused. Richison v. Boatright, 238 Ark. 579, 383 S.W.2d 287 (1964).

11-2-101. Purpose.

The purpose of the Division of Labor shall be to foster, promote, and develop the welfare of the wage earners of Arkansas, to improve their working conditions, and to advance their opportunities for profitable employment.

History. Acts 1937, No. 161, § 2; Pope's Dig., § 8498; A.S.A. 1947, § 81-102; Acts 2019, No. 910, § 5279.

Amendments. The 2019 amendment substituted “Division of Labor” for “Department of Labor”.

11-2-102. Definitions.

When used in this subchapter, unless the context otherwise requires:

    1. “Employer” includes every person, firm, corporation, partnership, stock association, agent, manager, representative, foreman, or other person having control or custody of any employment, place of employment, or of any employee.
    2. However, this subchapter shall not affect any employer engaged exclusively in farming operations, nor shall it affect employers employing fewer than five (5) persons; and
  1. “Safe” or “safety” as applied to any employment or place of employment shall include conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health, safety, and welfare of employees or the public.

History. Acts 1937, No. 161, §§ 1, 9; Pope's Dig., §§ 8497, 8505; A.S.A. 1947, §§ 81-101, 81-108.

Case Notes

Employer.

The clause “persons having control or custody of any employment, place of employment, or of any employee” defining employer cannot be interpreted so that each of the three qualities of an employer is mutually exclusive. Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969).

Where employee of one employer was injured while assisting employee of a second employer, second employee was not liable under this subchapter. Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969).

11-2-103. Exception.

This subchapter shall not apply to mines and mining or the mining industry.

History. Acts 1937, No. 161, § 25; Pope's Dig., § 8521; A.S.A. 1947, § 81-121n.

11-2-104. Penalties.

  1. Any employer or owner who violates or fails or refuses to comply with any provision of this subchapter, any lawful order of the Director of the Division of Labor, or any judgment or decree made by any court in connection with the provisions of this subchapter for which no penalty has been otherwise provided shall be guilty of a misdemeanor.
  2. Upon conviction, the employer or owner shall be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100), or shall be imprisoned for a period not exceeding six (6) months, or both fined and imprisoned for each offense.
  3. Each day the violation, omission, failure, or refusal continues shall be deemed a separate offense.

History. Acts 1937, No. 161, § 21; Pope's Dig., § 8517; A.S.A. 1947, § 81-120; Acts 2019, No. 910, § 5280.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Case Notes

Construction.

This section is penal in nature and should be strictly construed. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).

11-2-105. Enforcement.

    1. It shall be the duty of the Attorney General and the several prosecuting attorneys, upon request of the Director of the Division of Labor or any of his or her authorized representatives, to prosecute any violation of the law that is the duty of the director to enforce.
    2. The director may, upon his or her own motion, bring all necessary suits and institute such prosecutions as may be necessary to properly enforce this subchapter, and he or she shall not be required to give bond for cost or make appeal bonds.
    1. In lieu of the penalties provided in § 11-2-104, any penalty except imprisonment may be recovered in a civil action in the name of the State of Arkansas.
    2. The civil action shall be entitled to an expeditious hearing and shall receive precedence over all other matters except older matters of the same nature.
    3. Any sums forfeited under the provisions of this section shall be deposited with the Treasurer of State in the same manner as provided by law for other moneys of the state.

History. Acts 1937, No. 161, §§ 20, 21; Pope's Dig., §§ 8516, 8517; A.S.A. 1947, §§ 81-119, 81-120; Acts 2019, No. 910, § 5281.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a)(1).

Case Notes

Construction.

Subsection (b) of this section is penal in nature and should be strictly construed. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).

11-2-106. [Repealed.]

Publisher's Notes. This section, concerning creation of the Department of Labor, was repealed by Acts 2019, No. 910, § 5282, effective July 1, 2019. The section was derived from Acts 1937, No. 161, §§ 2, 5; Pope's Dig., §§ 8498, 8501; Acts 1941, No. 112, § 1; A.S.A. 1947, §§ 81-102, 81-105.

11-2-107. Appointment of director.

  1. The Governor shall appoint the Director of the Division of Labor, subject to confirmation by the Senate.
    1. The director shall serve at the pleasure of the Governor.
    2. The director shall report to the Secretary of the Department of Labor and Licensing.
    3. The director shall be a person who, on account of his or her previous vocation, employment, or affiliation can be classed as a representative of employees.
    4. All appointments made while the Senate is not in regular session shall be effective ad interim.
  2. The director shall give a bond in the sum of two thousand dollars ($2,000) with sureties to be approved by the Secretary of the Department of Labor and Licensing, conditioned for the faithful discharge of the duties of his or her office.
  3. The director shall also take the oath of office prescribed by the Constitution.
  4. The director shall provide himself or herself with a suitable seal, which shall be judicially noticed.

History. Acts 1937, No. 161, §§ 3, 18; Pope's Dig., §§ 8499, 8514; A.S.A. 1947, §§ 81-103, 81-117; Acts 1989, No. 927, § 1; 2009, No. 727, § 1; 2019, No. 910, § 5283.

A.C.R.C. Notes. The operation of subsection (c) of this section was suspended by adoption of a self-insured fidelity bond program for public officers, officials, and employees, effective July 20, 1987, pursuant to § 21-2-701 et seq. The subsection may again become effective upon cessation of coverage under that program. See § 21-2-703.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a); inserted (b)(2); redesignated former (b)(2) as (b)(3); deleted former (b)(3); and substituted “Secretary of the Department of Labor and Licensing” for “Governor” in (c).

Research References

Ark. L. Rev.

Administrative Law in Arkansas, 4 Ark. L. Rev. 107.

11-2-108. Director — Powers and duties generally.

In addition to such other duties and powers as may be conferred upon him or her by law, the Director of the Division of Labor shall have the power, jurisdiction, and authority:

  1. To enforce all labor laws in the State of Arkansas, the enforcement of which is not otherwise specifically provided for;
  2. To administer and enforce all laws, rules, and regulations that are the duty of the Division of Labor to administer and enforce;
  3. To direct, except as otherwise provided, make, or cause to be made all necessary inspections to see that all laws and rules made pursuant thereto that the division has the duty, power, and authority to enforce are promptly and effectively carried out; and
  4. To make investigations, collect and compile statistical information, and report upon conditions of labor generally and upon all matters relating to the enforcement and effect of the provisions of this subchapter and of the rules issued under this subchapter.

History. Acts 1937, No. 161, §§ 2, 7; Pope's Dig., §§ 8498, 8503; Acts 1951, No. 273, § 1; A.S.A. 1947, §§ 81-102, 81-107; Acts 2019, No. 910, § 5284.

Publisher's Notes. Acts 1937, No. 155, vested power to administer various labor laws in an Industrial Board.

Acts 1943, No. 126, transferred the powers of the Industrial Board under §§ 11-2-102, 11-2-110, 11-2-112—11-2-115, and 11-2-117 to the Commissioner of Labor, now the Director of the Department of Labor.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the introductory language; substituted “Division of Labor” for “Department of Labor” in (2); and substituted “division” for “department” in (3).

Case Notes

Enforcement of Rules.

Although this section gave the Commissioner of Labor (now the Director of the Department of Labor) power to administer and enforce all rules and regulations under the duties of the Department of Labor, it does not confer the power to adopt new rules and regulations. Arkansas Dep't of Labor v. American Emp. Agency, 257 Ark. 509, 517 S.W.2d 949 (1975).

11-2-109. Director — Intervention in and arbitration of labor disputes.

  1. In addition to such other duties and powers as may be conferred upon him or her by law, the Director of the Division of Labor shall have the power, jurisdiction, and authority:
      1. To intervene or authorize his or her representative to intervene in any labor dispute in a strictly conciliatory or mediatory capacity whenever he or she is extended a written invitation to do so by either party to the controversy.
      2. However, the Division of Labor may proffer its services to both parties when a work stoppage is threatened and neither party requests intervention;
    1. To do all in his or her power to promote the voluntary arbitration of disputes between employers and employees and to avoid the necessity of resorting to lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment.
    1. In pursuance of his or her duty, whenever both sides to any controversy agree to voluntary arbitration, the director may appoint temporary boards of arbitration, prescribe rules of procedure for the arbitration boards, conduct investigations and hearings, publish reports and advertisements, and do all things convenient and necessary to accomplish the purposes of this subchapter.
    2. Members of the boards of arbitration may receive expense reimbursement in accordance with § 25-16-901 et seq.
    1. The Secretary of the Department of Labor and Licensing may designate an employee of the division to act as chief mediator and may detail other employees or persons not in the division from time to time to act as his or her assistants for the purpose of executing these provisions.
    2. Employees of the division shall serve on temporary boards without extra compensation.

History. Acts 1937, No. 161, § 7; Pope's Dig., § 8503; Acts 1951, No. 273, § 1; A.S.A. 1947, § 81-107; Acts 1997, No. 250, § 57; 2019, No. 910, § 5285.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the introductory language of (a); substituted “Division of Labor” for “Department of Labor” in (a)(1)(B); substituted “secretary” for “director” in (c)(1); and substituted “division” for “department” twice in (c)(1) and once in (c)(2).

11-2-110. Director — Rulemaking authority.

  1. In addition to such other powers and duties as may be conferred upon him or her by law, the Director of the Division of Labor shall have the power to make, modify, and repeal reasonable rules for the prevention of accidents or industrial or occupational diseases in every employment or place of employment and to make, modify, and repeal reasonable rules for the construction, repair, and maintenance of places of employment, places of public assembly, and public buildings which shall render them safe.
  2. The director shall have the power to make, modify, or repeal such rules, or changes in rules, as he or she may deem necessary to carry out the provisions of this subchapter.
  3. The director may appoint committees composed of employers, employees, and experts to suggest rules or changes therein.
  4. The rules of the director shall have the force and effect of law and shall be enforced by the director in the same manner as the provisions of this subchapter.

History. Acts 1937, No. 161, § 10; Pope's Dig., § 8506; A.S.A. 1947, § 81-109; Acts 2019, No. 910, § 5286.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Cross References. Injuries, rules to prevent based on information from Workers' Compensation Commission, § 11-9-207.

Research References

Ark. L. Rev.

Administrative Law in Arkansas, 4 Ark. L. Rev. 107.

11-2-111. Office — Employees — Location of hearings.

  1. The Secretary of the Department of Labor and Licensing is authorized to appoint a deputy director, a secretary, the heads of divisions, and such other employees as may be necessary. He or she is authorized to assign them to their duties and recommend to the General Assembly the salaries that are to be fixed by appropriation.
  2. The Division of Labor shall keep an office in Pulaski County and shall maintain such other office as shall meet the convenience of the division and the public.
  3. The members, employees, and agents of the division shall be entitled to receive from the state their necessary and actual expenses while traveling on the business of the division either within or without the State of Arkansas.
  4. The Secretary of the Department of Labor and Licensing and his or her authorized representatives may hold hearings at any place other than the Capitol when the convenience of the division and of the interested parties requires.

History. Acts 1937, No. 161, §§ 4, 5; Pope's Dig., §§ 8500, 8501; Acts 1941, No. 112, § 1; A.S.A. 1947, §§ 81-104, 81-105; Acts 1989, No. 927, § 2; 2013, No. 1151, § 1; 2019, No. 910, § 5287.

Amendments. The 2013 amendment deleted the last sentence in (b).

The 2019 amendment substituted “Secretary of the Department of Labor and Licensing” for “Director of the Department of Labor” in (a); substituted “Division of Labor” for “Department of Labor” in (b) and substituted “division” for “department” throughout (b), (c), and (d); substituted “Pulaski County” for “the City of Little Rock” in (b); and substituted “secretary” for “director” in (d).

11-2-112. Promulgation of rules.

  1. Before any rule is adopted, amended, or repealed, there shall be a public hearing thereon, notice of which shall be published at least once and not less than ten (10) days prior to the public hearing in such newspaper as the Director of the Division of Labor may prescribe.
    1. All rules and all amendments and repeals thereof shall, unless otherwise prescribed by the director, take effect thirty (30) days after the first publication thereof, and certified copies shall be filed in the office of the Secretary of State.
    2. Every rule adopted and every amendment or repeal shall be published in such manner as the director may determine, and the director shall deliver a copy to every person making application therefor. The director shall include the text of each rule or amendment in an appendix to the annual report of the Division of Labor next following the adoption or amendment of the rule.

History. Acts 1937, No. 161, §§ 11, 12; Pope's Dig., §§ 8507, 8508; A.S.A. 1947, §§ 81-110, 81-111; Acts 2019, No. 910, § 5288.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a); and substituted “Division of Labor” for “department” in the second sentence of (b)(2).

11-2-113. Variation of rule due to difficulties or hardship.

  1. If there shall be practical difficulties or unnecessary hardships in carrying out a rule of the Director of the Division of Labor, the director may, after public hearing, make a variation from such requirement if the spirit of the rule and law shall be observed.
  2. Any person affected by the rule, or his or her agent, may petition the director for a variation, stating the grounds therefor.
  3. The director shall fix a day for a hearing on the petition and give reasonable notice to the petitioner.
  4. A properly indexed record of all variations made shall be kept in the office of the Department of Labor and open to public inspection.

History. Acts 1937, No. 161, § 13; Pope's Dig., § 8509; A.S.A. 1947, § 81-112; Acts 2019, No. 910, § 5289.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-2-114. Judicial review of rules.

    1. Any person aggrieved by a rule of the Director of the Division of Labor made pursuant to § 11-2-112 may commence an action in the Pulaski County Circuit Court against the Division of Labor, as defendant, to set aside the rule on the ground that it is unlawful or unreasonable.
    2. The action and the pleadings shall be governed by the laws and rules of practice applicable to other civil actions in the court.
    3. Any action brought under this section shall be commenced within thirty (30) days from the effective date of the rule.
    1. All rules of the director shall be prima facie lawful and reasonable and shall not be held invalid because of any technical defect, provided there is substantial compliance with the provisions of this subchapter.
    2. All rules shall be conclusively presumed to be lawful and reasonable if the action is not commenced within thirty (30) days from the date of the rule as provided in this section.

History. Acts 1937, No. 161, § 19; Pope's Dig., § 8515; A.S.A. 1947, § 81-118; Acts 2019, No. 910, § 5290.

Amendments. The 2019 amendment, in (a)(1), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, and substituted “Division of Labor” for “Department of Labor”.

11-2-115. Employer records — Inspection.

    1. Every employer or owner shall furnish to the Director of the Division of Labor any information that the director is authorized to require and shall make true and specific answers to all questions, whether submitted orally or in writing, authorized to be put to the employer or owner.
      1. Every employer shall keep a true and accurate record of the name, address, and occupation of each person employed by the employer, of the daily and weekly hours worked by each person, and of the wages paid each pay period to each person.
      2. The records shall be kept on file for at least one (1) year after the date of the record.
      3. No employer shall make or cause to be made any false entries in any record.
  1. The director and any authorized representative of the Division of Labor shall, for the purpose of examination, have access to and the right to copy from any book, account, record, payroll, paper, or documents relating to the employment of workers.

History. Acts 1937, No. 161, §§ 14, 15; Pope's Dig., §§ 8510, 8511; A.S.A. 1947, §§ 81-113, 81-114; Acts 2019, No. 910, §§ 5291, 5292.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a)(1); and substituted “Division of Labor” for “Department of Labor” in (b).

Research References

Ark. L. Rev.

Administrative Law in Arkansas, 4 Ark. L. Rev. 107.

11-2-116. Entry and inspection of workplace, etc.

  1. The Director of the Division of Labor and his or her authorized representatives shall have the power and authority to enter any place of employment, place of public assembly, or public building for the purpose of collecting facts and statistics relating to the employment of workers and of making inspections for the proper enforcement of all labor laws of the state.
  2. No employer or owner shall refuse to admit the director or his or her authorized representatives to his or her place of employment, public building, or place of public assembly.

History. Acts 1937, No. 161, § 16; Pope's Dig., § 8512; A.S.A. 1947, § 81-115; Acts 2019, No. 910, § 5293.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-2-117. Safe place of employment — Duties of employer and director.

  1. Every employer shall furnish employment that is safe for the employees therein and shall furnish and use safety devices and safeguards. The employer shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of the employees.
  2. Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall construct, repair, and maintain it so as to render it safe.
  3. If the Director of the Division of Labor or his or her authorized representative finds that any machine, tool, or equipment, or any part thereof, is in a dangerous condition, is not properly guarded, or is dangerously placed, he or she shall attach to the machine, tool, or equipment a notice warning all persons against its use and setting out in complete detail the conditions that render the machine, tool, or equipment unfit for service. The machine, tool, or equipment shall not be used until it is made safe, the required safeguards or safety appliances or devices as set forth in the certificate attached thereto have been fully corrected, and notice of the correction is sent to the Division of Labor by registered mail, accompanied by a certificate from a competent mechanic certifying correction of the defects.

History. Acts 1937, No. 161, § 9; Pope's Dig., § 8505; A.S.A. 1947, § 81-108; Acts 2019, No. 910, § 5294.

Amendments. The 2019 amendment, in (c), substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the first sentence, and substituted “Division of Labor” for “Department of Labor” in the second sentence.

Cross References. Inspection of working place, § 11-5-107.

Research References

ALR.

Technological Feasibility as Factor Affecting Validity of, or Obligation of Compliance with, Standards Established Under Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.). 72 A.L.R. Fed. 2d 461.

Judicial Deference to Secretary of Labor's Interpretations of Occupational Safety and Health Act or Regulations Promulgated Thereunder, 23 A.L.R. Fed. 3d Art. 1 (2017).

Case Notes

Applicability.

A violation of § 11-2-117 did not relieve employee of silica mine from assumption of risk of contracting occupational disease since this subchapter does not apply to mines and mining and the production of silica is a mining operation. Barksdale v. Silica Prods. Co., 200 Ark. 32, 137 S.W.2d 901 (1940).

By its terms this subchapter applies only to a person having five or more employees, therefore, where there was no proof that defendant had that minimum number of employees, instruction that defendant had control of job and it was his duty to furnish plaintiff with a safe place to work was properly refused. Richison v. Boatright, 238 Ark. 579, 383 S.W.2d 287 (1964).

This section is directed to employers and employees in relation to working conditions, safety, and enforcement of the labor laws in connection therewith and does not apply to manufacturers in the design of products to be sold in the open market. Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968), overruled, Suneson v. Holloway Constr. Co., 337 Ark. 571, 992 S.W.2d 79 (1999).

Where it was found that a general contractor hired an independent electrical contractor, who was the actual employer of the lineman injured on the job, the contractor and the lineman did not have an employer-employee relationship and this section did not apply. Stoltze v. Arkansas Valley Elec. Coop. Corp., 354 Ark. 601, 127 S.W.3d 466 (2003).

Assumption of Risk.

This section, together with § 11-8-105, does not bar the defense of assumption of risk, in the absence of evidence of negligence on the part of an employer. Buffington v. Owosso Mfg. Co., 105 F.2d 692 (8th Cir. 1939).

Duty.

It may be that possession of the place of employment by general contractor was sufficient to impose upon it a duty to make the place safe for employment of employee of the subcontractor; and, if so, the duty imposed on the prime contractor was beyond that imposed by the common law, and he could not escape liability by showing that he exercised ordinary care or even extraordinary care to make the place of employment safe. Carter v. Fraser Constr. Co., 219 F. Supp. 650 (W.D. Ark. 1963).

Where neither the landlord, who had contracted with a general contractor, nor a proposed tenant had control or custody of employment, place of employment, or employee of subcontractor, this section which imposes a duty upon certain persons to make a place safe for employment did not apply to them. Carter v. Fraser Constr. Co., 219 F. Supp. 650 (W.D. Ark. 1963).

This section does not require one employer to provide a safe place of employment for the employees of another. Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969).

Effect on Workers' Compensation.

Proof of a violation of this section is sufficient to support a fifteen percent penalty pursuant to § 11-9-503, even though this section is not part of the workers' compensation law. Georgia Pac. Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981).

Evidence.

—No Violation Shown.

There was no safety violation where there was evidence that employees were taught during training safety regulations written by defendant; safety rules were posted near work areas; and there were regular safety meetings with employees to reinforce awareness of safety in the work place and what could be done to avoid accidents. Reed v. Reynolds Metals, 33 Ark. App. 89, 801 S.W.2d 661 (1991).

—Violation Shown.

Injured employee had not failed to show a safety violation when he failed to show that the employer knew that the particular stair on which employee was injured would break; where the facts showed that the stair which broke was corroded, that the area was generally corroded and deteriorated, that the employer was aware of the danger, and that the employer neither made repairs nor set the area off limits to employees, the law requires no greater showing to establish a safety violation. Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995).

Landlords.

Without an assumption of responsibility for repairs, there is no common-law duty under which to impose liability on landlords to provide a safe workplace for the employees of their tenant, and none was created by this section. Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997).

Legislative Intent.

The General Assembly did not intend for the phrase “every owner of a place of employment” to expand or extend a landlord's duty to provide a safe place to work for his tenant's employees. Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997).

Cited: Estes v. Cedar Chems., 54 Ark. App. 311, 925 S.W.2d 444 (1996).

11-2-118. Oaths, certifications, subpoenas, etc. — Enforcement by contempt.

  1. The Director of the Division of Labor and any officer of the Division of Labor designated by the director, in the performance of any duty or the execution of any power prescribed by law, shall have the power to administer oaths, certify to official acts, take and cause to be taken depositions of witnesses, issue subpoenas, and compel the attendance of witnesses and the production of papers, books, accounts, payrolls, documents, records, and testimony.
  2. In case of failure of any person to comply with any subpoena lawfully issued or on the refusal of any witness to produce evidence or to testify to any matter regarding which he or she may be lawfully interrogated, it shall be the duty of any court of competent jurisdiction or the judge thereof, upon application of the director or any officer or agent of the division, to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued for the court or a refusal to testify therein.

History. Acts 1937, No. 161, § 17; Pope's Dig., § 8513; A.S.A. 1947, § 81-116; Acts 2003, No. 1473, § 21; 2019, No. 910, § 5295.

Amendments. The 2019 amendment, in (a), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, and substituted “Division of Labor” for “Department of Labor”; and substituted “division” for “department” in (b).

11-2-119. False statements made under oath deemed perjury.

Any employer or owner who shall knowingly testify falsely, under oath, or shall knowingly make, give, or produce any false statements or false evidence, under oath, to the Director of the Division of Labor or his or her authorized representatives shall be deemed guilty of perjury.

History. Acts 1937, No. 161, § 21; Pope's Dig., § 8517; A.S.A. 1947, § 81-120; Acts 2019, No. 910, § 5296.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

Cross References. Perjury, § 5-53-101 et seq.

Case Notes

Construction.

This section is penal in nature and should be strictly construed. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).

11-2-120. Annual report.

  1. The Director of the Division of Labor shall annually, on or before January 1, file with the Secretary of the Department of Labor and Licensing a report covering the activities of the Division of Labor, accompanied by recommendations with reference to such changes in the law, applying to and affecting industrial and labor conditions, as the director may deem advisable.
  2. The report of the director shall be printed and distributed in such manner as the secretary shall authorize.

History. Acts 1937, No. 161, § 22; Pope's Dig., § 8518; A.S.A. 1947, § 81-121; Acts 2019, No. 910, § 5297.

Amendments. The 2019 amendment, in (a), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, substituted “Secretary of the Department of Labor and Licensing” for “Governor”, and substituted “Division of Labor” for “Department of Labor”; and substituted “Secretary of the Department of Labor and Licensing” for “Governor” in (b).

11-2-121. Agreements with government agencies.

  1. The Director of the Division of Labor is authorized to enter into agreements with the United States Government and any and all other state governments for assistance and cooperation in enforcing and implementing state and federal laws and projects in fields related to the Division of Labor.
    1. The division may accept payment or reimbursement for its services as provided by the acts of Congress or the legislature of any other state.
    2. All payments or funds received by the division under this section shall be deposited into the State Treasury, to be expended as provided by law.

History. Acts 1967, No. 414, § 1; A.S.A. 1947, § 81-124; Acts 2019, No. 910, § 5298.

Amendments. The 2019 amendment, in (a), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, and substituted “Division of Labor” for “Department of Labor”; and substituted “division” for “department” in (b)(1) and (b)(2).

11-2-122. Disclosure to employees — Health benefits available.

  1. Any employer or owner who does make available any health benefits to employees, excluding workers' compensation, shall inform and notify the employees of the nature of those benefits as to those benefits being self-insured, fully insured, or Employee Retirement Income Security Act-qualified, and shall provide the necessary information to enable the employees to contact the authority regulating those health benefits.
  2. The notification shall be made at such time and in such manner as prescribed by rules promulgated by the Director of the Division of Labor.

History. Acts 1995, No. 1115, § 1; 2019, No. 315, § 753; 2019, No. 910, § 5299.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulation” in (b).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b).

U.S. Code. The federal Employee Retirement Income Security Act (ERISA) of 1974, referred to in this section, is codified as 29 U.S.C. § 1001 et seq.

11-2-123. Employment training and placement programs for ex-offenders.

  1. In order to help facilitate the restoration of an ex-offender's responsibility and self-sufficiency, the Division of Labor shall work in conjunction with other appropriate state agencies, the private sector, and labor organizations to promulgate rules for implementing placement and training programs for ex-offenders.
  2. Training and placement programs shall be intensive and focus on in-demand vocations and professions, including without limitation:
    1. Professional careers and vocations;
    2. Service careers and vocations;
    3. Information and computer technology;
    4. Medical technology; and
    5. Office administration.
  3. A training program created and administered under this section shall incorporate a “Certificate of Completion” to be awarded to any person who completes a training program under this section, which shall signify that the person is competent to enter the workforce as an employee satisfactorily trained in a particular vocation or profession or as an employee prepared for on-the-job training.

History. Acts 2011, No. 1151, § 2; 2019, No. 910, § 5300.

Amendments. The 2019 amendment substituted “Division of Labor” for “Department of Labor” in (a).

11-2-124. Social media accounts of current and prospective employees — Definitions.

  1. As used in this section:
    1. “Employee” means an individual who provides services or labor for wages or other remuneration for an employer;
    2. “Employer” means a person or entity engaged in business, an industry, a profession, a trade, or other enterprise in the state or a unit of state or local government, including without limitation an agent, representative, or designee of the employer; and
      1. “Social media account” means a personal account with an electronic medium or service where users may create, share, or view user-generated content, including without limitation:
        1. Videos;
        2. Photographs;
        3. Blogs;
        4. Podcasts;
        5. Messages;
        6. Emails; and
        7. Website profiles or locations.
      2. “Social media account” does not include an account:
        1. Opened by an employee at the request of an employer;
        2. Provided to an employee by an employer such as a company email account or other software program owned or operated exclusively by an employer;
        3. Set up by an employee on behalf of an employer; or
        4. Set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks.
      3. “Social media account” includes without limitation an account established with Facebook, Twitter, LinkedIn, Myspace, or Instagram.
    1. An employer shall not require, request, suggest, or cause a current or prospective employee to:
      1. Disclose his or her username and password to the current or prospective employee's social media account; or
      2. Change the privacy settings associated with his or her social media account.
    2. An employer shall not require a current or prospective employee to add another employee, supervisor, or administrator to the list or contacts associated with his or her social media account.
    3. If an employer inadvertently receives an employee's username, password, or other login information to the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer is not liable for having the information but may not use the information to gain access to an employee's social media account.
  2. An employer shall not:
    1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his or her rights under subsection (b) of this section; or
    2. Fail or refuse to hire a prospective employee for exercising his or her rights under subsection (b) of this section.
  3. This section does not prohibit an employer from viewing information about a current or prospective employee that is publicly available on the internet.
  4. Nothing in this section:
    1. Prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or
      1. Affects an employer's existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies.
      2. If an employer exercises its rights under subdivision (e)(2)(A) of this section, the employee's username and password shall only be used for the purpose of the formal investigation or a related proceeding.

History. Acts 2013, No. 1480, § 1; 2017, No. 792, § 1.

Amendments. The 2017 amendment deleted former (b)(1)(B) and redesignated former (b)(1)(C) as present (b)(1)(B); inserted present (b)(2); and redesignated former (b)(2) as (b)(3).

Research References

Ark. L. Rev.

Bethany N. Whitfield, Comment: Social Media @ Work: #policyneeded, 66 Ark. L. Rev. 843 (2013).

11-2-125. Relationship between franchisee and franchisor — Definitions.

  1. As used in this section:
    1. “Franchise” means a continuing commercial relationship or arrangement in which the terms of the offer or contract specify or the franchise seller promises or represents, orally or in writing, that:
      1. The franchisee shall obtain the right to operate a business that is identified or associated with the franchisor's trademark, or to offer, sell, or distribute goods, services, or commodities that are identified or associated with the franchisor's trademark;
      2. The franchisor will exert or has authority to exert a significant degree of control over the franchisee's method of operation, or provide significant assistance in the franchisee's method of operation; and
      3. As a condition of obtaining or commencing operation of the franchise, the franchisee makes a required payment or commits to make a required payment to the franchisor or its affiliate;
    2. “Franchisee” means a person that is granted a franchise;
    3. “Franchisor” means a person that grants a franchise and participates in the franchise relationship; and
    4. “Subfranchisor” means a person that functions as a franchisor by engaging in both presale activities and postsale performance.
  2. Notwithstanding a voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor or subfranchisor.

History. Acts 2017, No. 966, § 1.

Subchapter 2 — Arkansas Mediation and Conciliation Service Nondisclosure Act

Effective Dates. Acts 1979, No. 750, § 9: Apr. 6, 1979. Emergency clause provided: “It is hereby found, determined and declared by the General Assembly of the State of Arkansas that the general welfare of workers and labor and management in this State demands that the Service's mediators and employees maintain a reputation for impartiality and integrity, and that labor and management or other interested parties participating in mediation efforts must have the assurance and confidence that information disclosed to mediators and other employees of the Service will not be divulged voluntarily or because of compulsion. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate guarantee of the general welfare of workers and labor and management in this State shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

11-2-201. Title.

This subchapter may be cited as the “Arkansas Mediation and Conciliation Service Nondisclosure Act”.

History. Acts 1979, No. 750, § 1; A.S.A. 1947, § 81-125.

11-2-202. Policy.

It is declared to be the public policy of the State of Arkansas that the successful effectuation of the mission of the Arkansas Mediation and Conciliation Service requires that its mediators and employees maintain a reputation for impartiality and integrity. Labor and management or other interested parties participating in mediation efforts must have the assurance and confidence that information disclosed to mediators and other employees of the service will not subsequently be divulged, either voluntarily or by compulsion, even after the individual is no longer connected with the service.

History. Acts 1979, No. 750, § 2; A.S.A. 1947, § 81-126.

11-2-203. Definition.

For the purpose of this subchapter, unless the context otherwise requires, the term “person” means one (1) or more individuals, joint ventures, partnerships, associations, corporations, states, municipalities, business trusts, legal representatives, or any organized group of employees.

History. Acts 1979, No. 750, § 3; A.S.A. 1947, § 81-127; Acts 2019, No. 910, § 5301.

Amendments. The 2019 amendment substituted “Definition” for “Definitions” in the section heading; and rewrote the section by deleting the defined terms “director”, “service”, and “state”; and removing the designation (2) from the remaining definition.

11-2-204. Records and information confidential.

  1. All files, reports, letters, memoranda, minutes, documents, or other papers in the official custody of the Arkansas Mediation and Conciliation Service or any of its employees, or any other information, whether written or not, obtained in the course of any employee's official duties, relating to or acquired in its or their official activities under the labor laws of the state or the rules lawfully promulgated by the Director of the Division of Labor, are confidential.
  2. No confidential records or information shall be disclosed to any unauthorized person or be taken or withdrawn, copied, or removed from the custody of the service or its employees or former employees by any person or by any agent or representative of the person without the prior written consent of the representatives of both parties to the dispute involved.
  3. All information and material prepared or received by officers or employees shall be held in strictest confidence.
  4. Papers, reports, and copies thereof pertaining to or a part of dispute case files are not personal property but are the property of the state.
  5. Officers or employees terminating their connection with the service shall not be allowed to either keep or obtain copies of dispute case material or other official papers. Furthermore, all information, whether written or not, obtained in the course of their official duties must, after termination of their connection with the service, be treated by former employees with the same confidentiality as if they were still connected with the service.

History. Acts 1979, No. 750, §§ 4, 7; A.S.A. 1947, §§ 81-128, 81-131; 2019, No. 315, § 754; 2019, No. 910, § 5302.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-2-205. Compliance with subpoenas.

  1. No officer, employee, former employee, or other person officially connected or formerly officially connected to the Arkansas Mediation and Conciliation Service shall produce or present any confidential records of the service or testify in behalf of any party to any cause pending in any arbitration or other proceedings or court or before any board, commission, committee, tribunal, investigatory body, or administrative agency of the United States or of any state, territory, the District of Columbia, or the state or any municipality or political subdivision thereof with respect to facts or other matters coming to his or her knowledge in his or her official capacity, whether in answer to an order, subpoena duces tecum, or otherwise, without the prior written consent of the representatives of both parties to the dispute.
    1. Whenever any subpoena or subpoena duces tecum calling for confidential records or testimony as described in subsection (a) of this section has been served upon any officer, employee, or other person, he or she will appear in answer thereto and, unless otherwise expressly agreed to by the representatives of both parties to the dispute, respectfully decline, by reason of this section, to produce or present the confidential records or to give testimony.
    2. Immediately upon receipt of the subpoena, the mediator or former mediator or employee should contact the Director of the Division of Labor, who shall immediately notify the staff attorneys of the Department of Labor and Licensing of the state to ensure that the procedures set forth in this subchapter will be followed. The director then shall instruct the staff attorneys to appear in behalf of the mediator and protect the service from any disclosure that violates the provisions contained in this subchapter.
  2. In the event that the court insists that the mediator testify or produce documents, the staff attorneys of the department shall be further instructed to take immediate steps to procure the release of the mediator pending an appeal from the court's decision.

History. Acts 1979, No. 750, § 5; A.S.A. 1947, § 81-129; Acts 2019, No. 910, § 5303.

Amendments. The 2019 amendment, in the first sentence of (b)(2), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, and substituted “Department of Labor and Licensing” for “Department of Labor”.

11-2-206. Judicial review.

    1. The mediator or the Director of the Division of Labor on his or her behalf or the Attorney General on his or her behalf may obtain a review of the order requiring him or her to testify.
    2. The review may be obtained by filing in the Supreme Court, within thirty (30) days following the issuance of the order, a written petition praying that the order be modified or set aside.
    3. A copy of the petition shall be forthwith transmitted by the Clerk of the Supreme Court to the clerk of the court issuing the order to testify or to produce documents and to the other parties, and thereupon that clerk shall file in the Supreme Court the record in the proceedings.
    1. Upon filing, the Supreme Court shall have jurisdiction of the proceeding and of the question determined therein.
    2. The Supreme Court shall have power to grant such temporary relief or restraining order as it deems just and proper and to make and enter upon the pleadings, testimony, and proceedings set forth in the record a decree affirming, modifying, or setting aside, in whole or in part, the order of the court issuing its order to the mediator to testify or to produce and enforcing the order to the extent that it is affirmed or modified.

History. Acts 1979, No. 750, § 6; A.S.A. 1947, § 81-130; Acts 2019, No. 910, § 5304.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a)(1).

Chapter 3 Labor Relations and Practices

Research References

ALR.

Former employer's or supervisor's tort liability for misrepresentation or nondisclosure in employment references. 79 A.L.R.4th 941.

Setting aside arbitration award on ground of interest or bias of arbitrator — labor disputes. 66 A.L.R.5th 611.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities — state cases. 85 A.L.R.4th 979.

Labor union's liability for injury or death allegedly resulting from unsafe working conditions. 14 A.L.R.4th 1161.

State criminal prosecution of union officer or member for specific physical threats to employer's property or person, in connection with labor dispute. 43 A.L.R.4th 1141.

Subchapter 1 — General Provisions

Effective Dates. Acts 2003, No. 1473, § 74: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act includes technical corrects to Act 923 of 2003 which establishes the classification and compensation levels of state employees covered by the provisions of the Uniform Classification and Compensation Act; that Act 923 of 2003 will become effective on July 1, 2003; and that to avoid confusion this act must also effective on July 1, 2003. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

11-3-101. Soliciting advertising in name of labor organization.

    1. Any person, firm, or corporation soliciting advertising in the State of Arkansas in the name of, on behalf of, or claiming to represent bona fide labor organizations shall, prior to the soliciting thereof, file with the Secretary of State a surety bond in the sum of five thousand dollars ($5,000), conditioned that the person, firm, or corporation will well and truly perform any and all contracts entered into between the person, firm, or corporation and any person, firm, or corporation within the state.
    2. The person, firm, or corporation shall further file with the Secretary of State credentials from the organization the person, firm, or corporation represents, signed by the president and secretary and bearing the official seal of the organization.
    3. The bond shall be for the benefit of any person, firm, or corporation who or which has failed to receive any advertising contracted for.
  1. Any person, firm, or corporation violating the provisions of this section shall be guilty of a misdemeanor. Upon conviction, the person, firm, or corporation shall be fined in any sum not less than one thousand dollars ($1,000).

History. Acts 1941, No. 294, §§ 1, 2; A.S.A. 1947, §§ 71-201, 71-202; 2003, No. 1473, § 22.

Subchapter 2 — Hiring Practices

Effective Dates. Acts 1883, No. 96, § 10: effective on passage.

Acts 1905, No. 214, § 2: effective on passage.

Acts 1905, No. 298, § 2: effective on passage.

Acts 1923 (1st Ex. Sess.), No. 34, § 2: approved Oct. 20, 1923. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage.”

Acts 1951, No. 171, § 3: Feb. 27, 1951. Emergency clause provided: “Whereas, scores of citizens of this State are daily being required and forced to expend personal funds for physical examinations by persons, firms, partnerships, associations and corporations as a prerequisite to employment or continued employment; and whereas, it is inequitable and unjust to place this financial expense upon the applicant since the benefit from such examination flows substantially to said persons, firms, partnerships and corporations; therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Interference with at will business relationship. 5 A.L.R.4th 9.

Interference with contract or business relationship. 44 A.L.R.4th 1078.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 A.L.R.4th 310.

Employer's state-law liability for withdrawing, or substantially altering, job offer for indefinite period before employee actually commences employment. 1 A.L.R.5th 401.

Former employer's or supervisor's tort liability for misrepresentation or nondisclosure in employment references. 68 A.L.R.5th 1.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 A.L.R.4th 26.

Validity and construction of statute prohibiting employer's from suggesting or requiring polygraph or similar test as condition of employment or continued employment. 23 A.L.R.4th 187.

Am. Jur. 48 Am. Jur. 2d, Labor, § 1300 et seq.

C.J.S. 51 C.J.S., Labor, § 8.

11-3-201. Enticing away laborer prohibited — Penalty.

  1. If any person shall interfere with, entice away, knowingly employ, or induce a laborer who has contracted with another person for a specified time to leave his or her employer before the expiration of his or her contract without the consent of the employer, then, upon conviction before any justice of the peace or circuit court, he or she shall be fined not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500).
  2. In addition, he or she shall be liable to the employer for all advances made by him or her to the laborer by virtue of his or her contract, whether verbal or written, with the laborer and for all damages that he or she may have sustained by reason thereof.

History. Acts 1883, No. 96, § 8, p. 167; 1905, No. 298, § 1, p. 726; C. & M. Dig., § 2789; Acts 1923 (1st Ex. Sess.), No. 34, § 1; Pope's Dig., § 3493; A.S.A. 1947, § 81-210.

Case Notes

Note. This section and § 18-16-104 [repealed] codify different aspects of Acts 1883, No. 96, § 8, which prohibited interference with either renters or laborers and the following case notes should be read with both sections in mind.

Constitutionality.

Acts 1883, No. 96 is not in conflict with the federal peonage act. Johns v. Patterson, 138 Ark. 420, 211 S.W. 387 (1919).

Purpose.

Acts 1883, No. 96 is not solely to afford protection to the employer or landlord, but also it tends toward the preservation of peace and good order, the prevention of bloodshed, disorder, and strife. Tucker v. State, 86 Ark. 436, 111 S.W. 275, 1908 Ark. LEXIS 431 (1908).

Civil Action.

Conviction of the misdemeanor as defined in this section is not a prerequisite to the bringing of a civil action for damages. Johns v. Patterson, 138 Ark. 420, 211 S.W. 387 (1919).

Elements of Offense.

This section does not intend to punish one who knowingly gives employment to a laborer during the expired term of his contract with another, but the employment must be an interference with the laborer's performance of his prior contract with another or an enticement of the laborer from his employment or an inducement to him to leave his employer's services. Tucker v. State, 86 Ark. 436, 111 S.W. 275, 1908 Ark. LEXIS 431 (1908).

If a defendant, knowing that a valid contract exists between landlord and tenant, entices the tenant to other labor, that act is in direct violation of this section. Griffin v. State, 160 Ark. 166, 254 S.W. 469 (1923).

This section is violated if enticement is made while there exists a valid contract for continued service known to the defendant. State v. Moore, 166 Ark. 412, 265 S.W. 363 (1924).

Indictment.

Section 18-42-101, as amended, applies to this section and an indictment charging a violation of this section alleging a contract of service for one year need not allege that the contract was in writing. Mondschien v. State, 55 Ark. 389, 18 S.W. 383 (1892).

Where indictment charged defendant with inducing person to violate labor contract, and proof showed that contract was a contract of rental and not for service, conviction could not be had on that indictment. Mondschien v. State, 55 Ark. 389, 18 S.W. 383 (1892).

Jury Instructions.

An instruction intimating that the defendant was not liable if there had been a mere falling out between the plaintiff and the renter or unless the defendant had in some way participated in bringing about the breach or induced the renter to leave the plaintiff before the expiration of his contract did not mislead the jury. Park v. Depriest, 138 Ark. 86, 210 S.W. 777 (1919).

Minors.

A contract of employment with a minor under fifteen years of age, although voidable by the minor, was within the protection afforded by this section. Tucker v. State, 86 Ark. 436, 111 S.W. 275, 1908 Ark. LEXIS 431 (1908).

Although contract of employment of minor under fifteen years of age was not made in compliance with § 18-42-102, defendant could nevertheless be convicted under this section of enticing the minor from his employment. Tucker v. State, 86 Ark. 436, 111 S.W. 275, 1908 Ark. LEXIS 431 (1908).

Temporary Employment.

Hiring a tenant to do two or three days' work is not within the prohibition of this section. Sturdivant v. Tollette, 84 Ark. 412, 105 S.W. 1037 (1907).

Termination or Breach of Contract.

Hiring a tenant after he has terminated his contract with a landlord cannot be construed as a violation of this section. Park v. Depriest, 138 Ark. 86, 210 S.W. 777 (1919); Simonson v. Butler, 171 Ark. 1189, 287 S.W. 1014 (1926).

The defendant was not liable for hiring the plaintiff's renter where the renter had breached his contract before he was employed by the defendant. Park v. Depriest, 138 Ark. 86, 210 S.W. 777 (1919).

Damages cannot be recovered in an action where the tenant had made up his own mind to break his contract with plaintiff before defendant dealt with him. Coolidge v. Howe, 180 Ark. 952, 23 S.W.2d 609 (1930).

11-3-202. False statements or blacklists to prevent employment prohibited.

    1. In this state, every person who shall send or deliver, make or cause to be made for the purpose of being delivered or sent, part with the possession of any paper, letter, or writing, with or without a name signed thereto, sign with a fictitious name, or with any letter, mark, or other designation, or publish or cause to be published any false statement for the purpose of preventing another person from obtaining employment in this state or elsewhere shall, upon conviction, be adjudged guilty of a misdemeanor.
    2. Every person who shall blacklist any person by writing, printing, or publishing, or causing any of these things to be done, the name or any mark or designation representing the name of any person in any paper, pamphlet, circular, or book, together with any false statement concerning the person so named, or shall publish that anyone is a member of any secret organization, for the purpose of preventing that other person from securing employment, shall upon conviction be adjudged guilty of a misdemeanor.
    3. Any person who shall do any of the things mentioned in this section for the purpose of causing the discharge of any person employed by any railroad or other company, corporation, or individual shall upon conviction be adjudged guilty of a misdemeanor.
  1. A person convicted shall be fined in the sum of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisoned in the county jail for twelve (12) months, or both fined and imprisoned.

History. Acts 1905, No. 214, § 1, p. 545; C. & M. Dig., § 7135; Pope's Dig., § 9121; A.S.A. 1947, § 81-211.

Research References

ALR.

Validity, construction, and operation of state blacklisting statutes. 95 A.L.R.5th 1.

11-3-203. Medical examination as condition for employment.

    1. It is unlawful for any person, partnership, association, or corporation, either for himself or herself or in a representative or fiduciary capacity, to require any employee or applicant for employment, as a condition of employment or continued employment, to submit to or take a physical, medical examination, or drug test unless the physical, medical examination, or drug test is provided at no cost to the employee or applicant for employment and unless a true and correct copy, either original or duplicate original, of the examiner's report of the physical, medical examination, or drug test is furnished free of charge to the applicant or employee upon a written request of the applicant or employee.
    2. It shall further be unlawful for any person, partnership, association, or corporation to require any employee or applicant for employment to pay, either directly or indirectly, any part of the cost of the physical, medical examination, drug test, report, or copy of the report.
    3. Notwithstanding subdivision (a)(1) of this section, if an employee tests positive for an illegal drug as defined by rule of the Division of Labor, the employer and employee may agree in writing who will bear the cost of future drug tests or screens required as a condition of continued employment.
  1. Each and every violation of any provision of subsection (a) of this section shall constitute a misdemeanor, punishable by a fine in any amount not exceeding one hundred dollars ($100).
  2. The Director of the Division of Labor shall administer and enforce this section, including without limitation, by:
    1. Adopting administrative rules; and
    2. Demanding payment and seeking recovery in a court of competent jurisdiction for charges, fees, wage deductions, or other payments made by employees as a result of an employer's violation of this section.
  3. This section does not change the definition of “medical examination” under any other state or federal statute.

History. Acts 1951, No. 171, §§ 1, 2; A.S.A. 1947, §§ 81-212, 81-213; Acts 2009, No. 453, §§ 1, 2; 2011, No. 980, § 1; 2019, No. 910, §§ 5305, 5306.

Amendments. The 2011 amendment substituted “physical, medical examination, or drug test” for “examination” twice in (a)(1) and in (a)(2).

The 2019 amendment substituted “Division of Labor” for “Department of Labor” in (a)(3); and substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the introductory language of (c).

11-3-204. Providing references to prospective employers.

    1. A current or former employer may disclose the following information about a current or former employee's employment history to a prospective employer of the current or former employee upon receipt of written consent from the current or former employee:
      1. Date and duration of employment;
      2. Current pay rate and wage history;
      3. Job description and duties;
      4. The last written performance evaluation prepared prior to the date of the request;
      5. Attendance information;
      6. Results of drug or alcohol tests administered within one (1) year prior to the request;
      7. Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;
      8. Whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and
      9. Whether the employee is eligible for rehire.
    2. A school district or an officer, an agent, a servant, or an employee of a school district may disclose the information under subdivision (a)(1)(A)-(I) of this section and any additional information that may have some bearing upon the hiring of a current or former employee by a school district with or without the written consent of the current or former employee.
    3. The current or former employer disclosing the information is presumed to be acting in good faith and is immune from civil liability for the disclosure or any consequences of the disclosure unless the presumption of good faith is rebutted upon a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.
    4. The current or former employer disclosing the information may present the information in a format convenient to the current or former employer, including any electronic format.
      1. The consent required in subsection (a) of this section shall be on a separate form from the application form or, if included in the application form, shall be in bold letters and in larger typeface than the largest typeface in the text of the application form.
      2. The consent form shall state, at a minimum, language similar to the following:
    1. The consent shall be signed and dated by the applicant.
      1. The consent shall be valid only for the length of time that the application is considered active by the prospective employer.
      2. If the applicant is hired and remains with the new employer for longer than six (6) months, the consent shall be valid for no longer than six (6) months.
      3. If the applicant is hired and remains with the new employer for less than six (6) months, the consent shall be valid for six (6) months after the termination of employment.
  1. The provisions of this section shall also apply to any current or former employee, agent, or other representative of the current or former employer who is authorized to provide and who provides information in accordance with the provisions of this section.
    1. This section does not require any prospective employer to request employment history on a prospective employee and does not require any current or former employer to disclose employment history to any prospective employer.
    2. Except as specifically amended herein, the common law of this state remains unchanged as it relates to providing employment information on present and former employees.
    3. This section shall apply only to causes of action accruing on and after July 30, 1999.
  2. The immunity conferred by this section shall not apply when an employer or prospective employer discriminates or retaliates against an employee because the employee or the prospective employee has exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.

“I, (applicant) , hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer)

History. Acts 1999, No. 1474, §§ 1-5; 2013, No. 1039, § 1; 2015, No. 949, § 1.

Amendments. The 2013 amendment inserted present (a)(2) and redesignated former (a)(2) as (a)(3).

The 2015 amendment added (a)(4); redesignated former (b)(1) as (b)(1)(A) and (B); and rewrote (b)(3).

11-3-205. Private employers — Leave for bone marrow or organ donation — Withholding tax credit.

  1. As used in this section:
    1. “Bone marrow donor” means a person from whose body bone marrow is taken to be transferred to the body of another person;
    2. “Organ” means a human organ that is capable of being transferred from the body of a person to the body of another person, including eyes;
    3. “Organ donor” means a person from whose body an organ is taken to be transferred to the body of another person; and
      1. “Private employer” means a sole proprietor, corporation, partnership, limited liability company, or other entity with one (1) or more employees.
      2. “Private employer” does not include a municipality, county, state agency, institution of higher education, or other public employer.
    1. In addition to any medical, personal, or other paid leave provided by the employer, a private employer shall grant an employee an unpaid leave of absence to allow the employee to serve as an organ donor or a bone marrow donor if the employee requests a leave of absence in writing.
    2. The length of the leave of absence shall be equal to the time requested by the employee or ninety (90) days, whichever is less.
    3. A private employer may grant a paid or unpaid leave of absence for a length of time greater than ninety (90) days.
    1. If a private employer agrees to pay the employee's regular salary or wages during the leave of absence required under subsection (b) of this section, then the private employer is entitled to a credit against the private employer's Arkansas withholding tax liability.
      1. The amount of the credit provided in subdivision (c)(1) of this section shall be equal to twenty-five percent (25%) of the regular salary or wages paid to the employee while the employee was on a leave of absence required under subsection (b) of this section.
      2. However, if the private employer grants the employee a leave of absence greater than ninety (90) days, the credit provided under this subsection shall be limited to the regular salary or wages paid during the first ninety (90) days of the leave of absence.
    2. The credit shall be taken within one (1) year of the date upon which the leave required under subsection (b) of this section begins.
  2. This section shall not apply if the employee is eligible for leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

History. Acts 2005, No. 2235, § 1.

11-3-206. Copies of employee background checks.

Upon the request of an employee or an applicant for employment, an employer that receives background check information regarding an employee or an applicant for employment shall provide a copy of the background check information to the employee or applicant for employment.

History. Acts 2017, No. 1028, § 1.

Subchapter 3 — Right to Work

Publisher's Notes. Acts 1947, No. 101, § 5, provided that that act would not apply to existing contracts, but would apply to any renewals or extensions thereof.

Cross References. Rights of labor, Ark. Const. Amend. 34.

Research References

Am. Jur. 48 Am. Jur. 2d, Labor, §§ 1192, 1202, 1205, 1217, 1219, 1334, 2588.

Ark. L. Notes.

Flaccus, Employment Law: Eliminating Some Employee Rights, 1997 Ark. L. Notes 1.

Ark. L. Rev.

Acts of 1947: “Freedom to Work” Act, 1 Ark. L. Rev. 204.

Federal Limitations on State Jurisdiction over Labor-Management Relations, 12 Ark. L. Rev. 354.

Thirteen Years of the “Right to Work” in Arkansas, 14 Ark. L. Rev. 289.

Labor Law — Legality of Hiring-Hall Agreement in Arkansas, 17 Ark. L. Rev. 98.

Labor Law — Collective Bargaining in the Public Sector, 23 Ark. L. Rev. 503.

C.J.S. 51 C.J.S., Labor, § 10.

Case Notes

In General.

This subchapter is the enabling and enforcement law for Ark. Const. Amend. 34. Self v. Taylor, 217 Ark. 953, 235 S.W.2d 45 (1950).

Federal Preemption.

Where picketing is for the purpose of forcing an employer to agree to a provision which is in violation of state law, the National Labor Relations Act does not apply. Int'l Ass'n of Machinists v. Goff-McNair Motor Co., 223 Ark. 30, 264 S.W.2d 48 (1954).

Where the conduct in dispute and the parties are subject to the exclusive and primary jurisdiction of the National Labor Relations Board, a state chancery court has no jurisdiction under this subchapter. Int'l Hodcarriers v. Cone-Huddleston, Inc., 241 Ark. 140, 406 S.W.2d 366 (1966).

Picketing.

The fact that labor dispute did not exist between employer and employees did not of itself render picketing unlawful. Self v. Wisener, 226 Ark. 58, 287 S.W.2d 890 (1956).

Peaceful picketing as a protest against the payment of substandard wages is not prohibited by this chapter. Self v. Wisener, 226 Ark. 58, 287 S.W.2d 890 (1956).

Cited: Int'l Bhd. of Elec. Workers, Local No. 295 v. Broadmoor Builders, Inc., 225 Ark. 260, 280 S.W.2d 898 (1955).

11-3-301. Policy.

Freedom of organized labor to bargain collectively and freedom of unorganized labor to bargain individually is declared to be the public policy of the state under Arkansas Constitution, Amendment 34.

History. Acts 1947, No. 101, § 1; A.S.A. 1947, § 81-201.

Research References

ALR.

Validity, construction, and application of state right-to-work provisions. 105 A.L.R.5th 243.

Case Notes

Public Employees.

This section does not require a city to engage in collective bargaining with a labor union to which city employees belong. City of Fort Smith v. Ark. State Council No. 38, 245 Ark. 409, 433 S.W.2d 153 (1968).

11-3-302. Enforcement.

The power and duty to enforce this subchapter is conferred upon and vested in the circuit court of the county in which any person, group of persons, firm, corporation, unincorporated association, labor organization, or representatives thereof who violate this subchapter, or any part hereof, reside or have a place of business or may be found and served with process.

History. Acts 1947, No. 101, § 4; A.S.A. 1947, § 81-204.

Case Notes

Cited: Lewis v. Hixson, 174 F. Supp. 241 (W.D. Ark. 1959).

11-3-303. Union affiliation or nonaffiliation not to be condition of employment.

No person shall be denied employment because of membership in or affiliation with a labor union, nor shall any person be denied employment because of failure or refusal to join or affiliate with a labor union, nor shall any person, unless he or she shall voluntarily consent in writing to do so, be compelled to pay dues or any other monetary consideration to any labor organization as a prerequisite to, condition of, or continuance of employment.

History. Acts 1947, No. 101, § 2; A.S.A. 1947, § 81-202.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Labor Law, 1 U. Ark. Little Rock L.J. 217.

Case Notes

In General.

Where the requirement of union membership as a condition of employment in a wage agreement is limited to the extent and manner permitted by law, such wage agreement is valid. Lewis v. Hixson, 174 F. Supp. 241 (W.D. Ark. 1959).

Affiliate.

This section applies not only to persons who are not members of a labor union but also to persons who fail or refuse to affiliate with a labor union. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), cert. denied, 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501 (1963).

The word “affiliate” is not used in the same sense as the word “join”; otherwise the General Assembly would not have used the two words in the same sentence. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), cert. denied, 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501 (1963).

Exclusive Arrangement.

Arrangement which made the register of applicants the exclusive source of employees was prohibited by the constitution and the laws of this state because it had the effect of excluding persons from employment who failed to join or affiliate with a union, thus accomplishing by indirection what they were prohibited by law from doing directly. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), cert. denied, 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501 (1963).

Picketing.

Although picketing was peaceful, where from evidence it was shown that only purpose of picketing was to force appellee to continue a closed shop, picketing was enjoined. Self v. Taylor, 217 Ark. 953, 235 S.W.2d 45 (1950).

11-3-304. Contracts to exclude persons from employment prohibited.

  1. No person, group of persons, firm, corporation, association, or labor organization shall enter into any contract to exclude from employment:
    1. Persons who are members of, or affiliated with, a labor union;
    2. Persons who are not members of, or who fail or refuse to join or affiliate with, a labor union; and
    3. Persons who, having joined a labor union, have resigned their membership or have been discharged, expelled, or excluded.
    1. Any person, group of persons, firm, corporation, association, labor organization, or representatives thereof, either for themselves or others, who sign, approve, or enter into a contract contrary to the provisions of this subchapter shall be guilty of a misdemeanor. Upon conviction, the person, group of persons, firm, corporation, association, labor organization, or representatives thereof, shall be fined in a sum not less than one hundred dollars ($100) nor more than five thousand dollars ($5,000).
    2. Each day that the unlawful contract is given effect, or in any manner complied with, shall be deemed a separate offense and shall be punishable as such as provided in this section.

History. Acts 1947, No. 101, §§ 3, 4; A.S.A. 1947, §§ 81-203, 81-204.

Case Notes

Affiliate.

This section applies not only to persons who are not members of a labor union but also to persons who fail or refuse to affiliate with a labor union. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), cert. denied, 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501 (1963).

The use of the word “affiliate” is not used in the same sense as the word “join”; otherwise the General Assembly would not have used the two words in the same sentence. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), cert. denied, 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501 (1963).

Contract Validity.

No suit could be maintained on agreement to recover amounts due pension fund from defendant operators where pension fund agreement was part of illegal, and thus void and unenforceable, closed shop agreement. Lewis v. Jackson & Squire, Inc., 86 F. Supp. 354 (W.D. Ark. 1949), appeal dismissed, 181 F.2d 1011 (8th Cir. 1950).

Where the union shop provision of a wage agreement is limited to the extent and manner permitted by law, the wage agreement is valid under the right to work statutes. Lewis v. Hixson, 174 F. Supp. 241 (W.D. Ark. 1959).

Furnishing Employees.

A provision in a collective bargaining agreement that a union would furnish the employer with such workers as necessary to complete work contracted for by the employer, was not a provision for a closed shop and was not illegal. Ketcher v. Sheet Metal Workers' Int'l Ass'n, 115 F. Supp. 802 (E.D. Ark. 1953).

Membership Required.

Where requirement contained in wage agreement that as a condition of employment all employees should be or become members of the union was followed by the phrase “to the extent and in the manner permitted by law,” the phrase negated the possibility of a union shop, thus making the agreement acceptable under the right to work laws. Lewis v. Hixson, 174 F. Supp. 241 (W.D. Ark. 1959).

Picketing.

Picketing would not be enjoined on ground that the picketing was for purpose of coercing execution of closed shop contract where there was no testimony that a closed shop contract was ever mentioned or demanded by the union. Local No. 802 v. Asimos, 216 Ark. 694, 227 S.W.2d 154 (1950).

A demand by a union that a collective bargaining agreement contain a provision in violation of Ark. Const. Amend. 34 and this subchapter, coupled with picketing in an attempt to enforce the demand, is grounds for the issuance of an injunction prohibiting picketing. Int'l Ass'n of Machinists v. Goff-McNair Motor Co., 223 Ark. 30, 264 S.W.2d 48 (1954).

Sole Bargaining Agent.

An agreement providing that the local union will be bargaining agent for employees, but which does not require that employees be or become union members nor that the contractor must request workmen from the union is not a violation of this subchapter. Williams v. Arthur J. Arney Co., 240 Ark. 157, 398 S.W.2d 515 (1966).

Cited: Lewis v. Hixson, 174 F. Supp. 241 (W.D. Ark. 1959).

Subchapter 4 — Labor Disputes

Cross References. State police not to perform duties on private property in connection with strikes or lockouts, § 12-8-106.

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities - state cases. 85 A.L.R.4th 979.

Am. Jur. 48A Am. Jur. 2d, Labor, § 3511 et seq.

Ark. L. Rev.

Injunctions Against Picketing in Arkansas, 1 Ark. L. Rev. 281.

Constitutional Law — Labor Law — Picketing as Free Speech, 5 Ark. L. Rev. 90.

Federal Limitations on State Jurisdiction over Labor-Management Relations, 12 Ark. L. Rev. 354.

C.J.S. 51B C.J.S., Lab. Rel., § 1165.

51A C.J.S., Labor, § 263 et seq.

30 C.J.S., Employer-Employee, § 35 et seq.

11-3-401. Prevention of lawful employment prohibited.

    1. It shall be unlawful for any person by the use or threat of the use of force or violence to prevent or attempt to prevent any person from engaging in any lawful vocation within this state.
    2. Any person guilty of violating this subsection shall be deemed guilty of a felony and upon conviction shall be punished by confinement in the Department of Corrections for not less than one (1) year nor more than two (2) years.
    1. It shall be unlawful for any person acting in concert with one (1) or more other persons to assemble at or near any place where a labor dispute exists and by force or violence prevent or attempt to prevent any person from engaging in any lawful vocation.
    2. It shall also be unlawful for any person acting either by himself or herself or as a member of any group or organization or acting in concert with one (1) or more other persons to promote, encourage, or aid any such unlawful assemblage.
    3. Any person guilty of violating this subsection shall be deemed guilty of a felony and upon conviction thereof shall be punished by confinement in the Department of Corrections for not less than one (1) year nor more than two (2) years.
  1. The term “labor dispute” as used in this section shall include any controversy between an employer and two (2) or more employees concerning the terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.
  2. The provisions of this section shall be cumulative of all other existing criminal laws of this state upon the same subject, and in the event of a conflict between existing articles and the provisions of this section, then and in that event, the provisions, offenses, and punishments set forth herein shall prevail over the existing articles.

History. Acts 1943, No. 193, §§ 1-4; A.S.A. 1947, §§ 81-206 — 81-209; Acts 2019, No. 910, §§ 694, 695.

Amendments. The 2019 amendment substituted “Department of Corrections” for “Department of Correction” in (a)(2) and (b)(3).

Case Notes

Constitutionality.

This section does not violate constitutional guarantee of equal protection of the law. Smith v. State, 207 Ark. 104, 179 S.W.2d 185, 1944 Ark. LEXIS 623 (1944).

Subsection (b) of this section is not unconstitutional on the ground that it is vague, since it plainly means that it is unlawful for two or more to assemble and by force and violence prevent another from engaging in a lawful vocation. Cole v. Arkansas, 338 U.S. 345, 70 S. Ct. 172 (1949).

Construction.

This section was borrowed from the state of Texas and along with it, the construction theretofore given it by the highest court of that state. Smith v. State, 207 Ark. 104, 179 S.W.2d 185, 1944 Ark. LEXIS 623 (1944).

Appeal.

Where information charged offense under subsection (b), decision on appeal affirming conviction because of violation of subsection (a) denied defendants due process of law. Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948).

Applicability of Federal Law.

Where picketing is for the purpose of forcing an employer to agree to a provision which is in violation of state law, the National Labor Relations Act does not apply. Int'l Ass'n of Machinists v. Goff-McNair Motor Co., 223 Ark. 30, 264 S.W.2d 48 (1954).

Evidence.

Evidence sufficient to sustain a conviction for violation of this section. Smith v. State, 207 Ark. 104, 179 S.W.2d 185, 1944 Ark. LEXIS 623 (1944); Cole v. State, 214 Ark. 387, 216 S.W.2d 402 (1949), aff'd, 338 U.S. 345, 70 S. Ct. 172 (1949).

Indictment and Information.

Information charging that by threats and the use of force and violence defendant prevented named individual from engaging in the painting of a building was sufficient. Smith v. State, 207 Ark. 104, 179 S.W.2d 185, 1944 Ark. LEXIS 623 (1944).

While indictment charging that defendant did “prevent and/or attempt to prevent” the engaging in a certain occupation was improper, the defendant should have asked for a bill of particulars, and motion in arrest of judgment was properly overruled. Gurein v. State, 209 Ark. 1082, 193 S.W.2d 997 (1946).

Cited: Int'l Ass'n of Machinists v. Goff-McNair Motor Co., 223 Ark. 30, 264 S.W.2d 48 (1954).

11-3-402. Interference with railroad engines and employees prohibited.

  1. Where a labor union or striking employees are picketing, or causing to be picketed, the premises or approach to the premises of any employer which is not a railroad, it shall be unlawful for any persons to stand upon the track or in the way or otherwise interfere with, prevent, delay, forbid, or obstruct by force or threats the progress of any railroad engine, train, or cars operated by a railroad common carrier in the performance of its common carrier duties and moving from, to, or past the premises.
  2. Where any labor union or striking employees are picketing, or causing to be picketed, the premises or approach to the premises of an employer which is not a railroad, it shall be unlawful for any person, through intimidation, picketing, or otherwise intentionally to induce or persuade, or to seek to induce or persuade, any employees of a railroad not to enter, leave, or pass the premises with any railroad engine, train, or cars operated by a railroad in the performance of its common carrier duties.
  3. Any person who shall violate any of the provisions of this section shall upon conviction be adjudged guilty of a misdemeanor and punished by a fine not exceeding five hundred dollars ($500) or by imprisonment in the county jail for a time not to exceed six (6) months, or by both fine and imprisonment.
  4. In addition to the penalty provisions of this section, it shall be the duty of any court of competent jurisdiction at the instance of any party adversely affected by a violation of this section to enforce the provisions by restraining orders and injunction.
  5. Anyone conspiring with others to cause a violation of this section shall be liable in a civil action for damages.

History. Acts 1953, No. 257, §§ 1-4; A.S.A. 1947, §§ 81-214 — 81-217.

Case Notes

Cited: Int'l Bhd. of Elec. Workers, Local No. 295 v. Broadmoor Builders, Inc., 225 Ark. 260, 280 S.W.2d 898 (1955).

Chapter 4 Wage and Hour Regulation Generally

Research References

ALR.

Discharge of employee for complaining about wages, hours, or working conditions. 35 A.L.R.4th 1031.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period. 18 A.L.R.5th 577.

Subchapter 1 — General Provisions

Effective Dates. Acts 1905, No. 49, § 4: effective on passage.

Acts 1911, No. 34, § 3: effective on passage.

Research References

ALR.

Extraterritorial Application of State Wage and Hours Laws, 29 A.L.R.7th Art. 7 (2018).

Am. Jur. 48A Am. Jur. 2d, Labor, § 2581 et seq.

11-4-101. Assignment of wages.

No assignment or order for wages to be earned in the future to secure a loan of less than two hundred dollars ($200) shall be valid against any employer of the person making the assignment or order until the assignment or order is accepted in writing by the employer and the assignment or order and the acceptance of it has been filed with the recorder of the county where the party making the assignment or order resides if a resident of this state or in the state where he or she is employed.

History. Acts 1911, No. 34, §§ 1, 2; C. & M. Dig., §§ 7133, 7134; Pope's Dig., §§ 9119, 9120; A.S.A. 1947, §§ 81-316, 81-317; Acts 2013, No. 1151, § 2.

Amendments. The 2013 amendment deleted (b).

Case Notes

Applicability.

Subsection (a) of this section does not apply to assignment to secure purchase of an article. Missouri Pac. R.R. v. Warren, 162 Ark. 199, 258 S.W. 130 (1924).

Cited: Union Life Ins. Co. v. Perkins, 257 F. Supp. 154 (E.D. Ark. 1966).

11-4-102. [Repealed.]

Publisher's Notes. This section, concerning maximum hours in saw and planing mills, was repealed by Acts 2003, No. 924, § 1. The section was derived from Acts 1905, No. 49, §§ 1-3, p. 139; C. &. M. Dig., §§ 7082-7084; Pope's Dig., §§ 9064-9066; A.S.A. 1947, §§ 81-422 — 81-424.

11-4-103. Employment status.

For purposes of this chapter, employment status as an employee or independent contractor is determined by consideration of the twenty-factor test required by the Empower Independent Contractors Act of 2019, § 11-1-201 et seq.

History. Acts 2019, No. 1055, § 2.

Subchapter 2 — Minimum Wage Law

Effective Dates. Acts 1973, No. 13, § 2: Jan. 29, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that the minimum wage of one dollar and twenty cents ($1.20) per hour currently provided by law is totally inadequate; that this Act increases the minimum wage to one dollar and forty cents ($1.40) and should be given effect on July 1, 1973; that if it should become necessary to extend the Regular Session of the Sixty-Ninth General Assembly to complete the business of the Session the final adjournment date might be too late for the provisions of this Act to be given effect on July 1, unless an emergency is declared; that the General Assembly finds that it is essential to the welfare of the citizens of this State that the provisions of this Act be given effect on July 1, 1973. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 1975, No. 316, § 2: Mar. 5, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that the minimum wage of one dollar and forty cents ($1.40) currently provided by law is totally inadequate; and that this Act increases the minimum wage to one dollar and seventy cents ($1.70) and should be given effect on July 1, 1975; and that if it should become necessary to extend the Regular Session of the Seventieth General Assembly to complete the business of the Session, the final adjournment date might be too late for the provisions of this Act to be given effect on July 1, 1975, unless an emergency is declared; that the General Assembly finds that it is essential to the welfare of the citizens of this State that the provisions of this Act be given effect on July 1, 1975. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety, shall be in effect from and after the date of its passage and approval.”

Acts 1975 (Extended Sess., 1976), No. 1156, § 2: Feb. 11, 1976. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly, meeting in Extended Session, that Section 1 of Act 316 of 1975 requires clarification regarding the status of students under Arkansas Labor Laws and the effect of gratuities upon minimum wage, and that legislative action is necessary to allow this clarification. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after the date of its passage and approval.”

Acts 1977, No. 345, § 6: Mar. 1, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the minimum wage of two dollars ($2.00) per hour currently provided by law is totally inadequate; that this Act increases the minimum wage to two dollars and ten cents ($2.10) an hour; that the minimum wage coverage extending to employers with five (5) or more employees is totally inadequate; that this Act extends the minimum wage coverage to employers with four (4) or more employees; that employment of workers in excess of forty (40) hours in a workweek, and forty-eight (48) hours in a workweek in the case of hotel, motel, and restaurant workers, at less than premium pay for such additional work is detrimental to the health and welfare of such workers; that this Act provides overtime compensation for hours worked in excess of forty (40) hours in a workweek, and forty-eight (48) hours per workweek in the case of hotel, motel, and restaurant workers, at one and one-half times their regular hourly rate of pay; that the General Assembly finds that it is essential to the welfare of the citizens of this State that the provisions of this Act be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 1981, No. 610, § 3: Jan. 1, 1982.

Acts 1981, No. 667, § 3: Jan. 1, 1982.

Acts 1987, No. 987, § 3: Apr. 14, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of the case Ricarte v. State, CR 86-31, a question has arisen over the validity of Act 1156 of the Extended Session of 1976; that this Act is a reenactment of the former law; and that the immediate passage of this Act is necessary to clarify the state of the law on this issue. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 544, § 6: July 1, 1991. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the minimum wage laws and overtime laws in Arkansas are in need of revision and that this act is immediately necessary to assist persons now receiving minimum wage. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect on and after July 1, 1991.”

Acts 1997, No. 201, § 5: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the state minimum wage in Arkansas is unreasonably low; that this act increases the state minimum wage to parallel the federal minimum wage; that this act should go into effect on July 1, 1997; and that unless this emergency clause is adopted the act will not be effective until after July 1, 1997. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect beginning July 1, 1997.”

Acts 1997, No. 221, § 6: Feb. 20, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law regarding the enforcement by the Director of the Department of Labor of the state's minimum wage laws is both time consuming and costly, resulting in unnecessary delay in recovery of wages for wage earners and unnecessary costs to the state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 1369, § 5: Apr. 12, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that those camps affected by this Act are in immediate need of relief so that they may plan and continue their operations. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Identical Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8: Oct. 1, 2006.

Acts 2007, No. 545, § 3: Mar. 28, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Act 15 of the 1st Extraordinary Session of 2006 raised the state minimum wage and enlarged its application. It is further found that there is a need to parallel certain provisions of federal labor law in order to prevent widespread disruption of the payroll practices of Arkansas employers that would result in increased business costs. It is further found that those increased business costs would place Arkansas employers in a competitive disadvantage by comparison to employers in other states and would result in irreparable economic harm Arkansas employers and their employees. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 707, § 2: Apr. 29, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is necessary to protect jobs within the State of Arkansas, prevent an increase in costs to residents and tourists that patronize restaurants, and protect the financial stability of businesses that rely on the services provided by tipped employees. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective thirty (30) days from and after the date of its passage and approval. If the bill is neither approved nor vetoed by the Governor, it shall become effective thirty (30) days from the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective thirty (30) days from the date the last house overrides the veto.”

Acts 2013, No. 457, § 2: Mar. 21, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that organized camps and religious and nonprofit educational conference centers begin preparations for summer camps and conferences several months before the summer season begins; that organized camps and religious and nonprofit educational conference centers need clarity about staff wages early in the season-preparation and planning process; and that this act is immediately necessary because organized camps and religious and nonprofit educational conference centers will be harmed if they cannot immediately construct an accurate picture of the costs of operating during the forthcoming summer season. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2017, No. 914, § 5: Apr. 5, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that a recent 4 to 3 decision by the Supreme Court in Gerber Products Company v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856, is at odds with the intent of the General Assembly because it misinterpreted state law, as evidenced by the legislative history surrounding the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., to require compensation for certain activities otherwise made noncompensable through the collective bargaining process; that the dissenting opinion in Gerber Products Company v. Hewitt better reflects the legislative intent of the General Assembly and identifies some of the dangers presented by the majority opinion, specifically that ‘the floodgates will open to litigation at the enormous cost to businesses in Arkansas’ and that the opinion ‘undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements’; that certain activities have not been considered to be ‘work’ under state or federal law by employers and employees in the State of Arkansas who have conducted business in reliance upon that accepted understanding; that federal law embodied in the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., along with regulations and case law interpreting the same, has for many decades established that these certain activities are not compensable ‘work’; that the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., existed for nearly fifty years without any interpretation that such activities should be compensable ‘work’ under any state law; and that this act is immediately necessary to legislatively overrule Gerber Products Company v. Hewitt, to clarify that the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., incorporates and has always relied upon 29 U.S.C. § 254, which is now embodied in § 11-4-221, to define whether certain activities constitute compensable ‘work’ under state law, and to clarify the Minimum Wage Act of the State of Arkansas's deference to collective bargaining as embodied in § 11-4-205, so as to (1) protect the sanctity of collective bargaining agreements that have been negotiated and honored so as not to require compensation for activities like those described in 29 U.S.C. § 203(o) of the Fair Labor Standards Act of 1938, and (2) protect Arkansas employers from increased business costs that would place them in a competitive disadvantage by comparison to employers in other states and that would result in irreparable economic harm to such Arkansas employers and their employees. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Extraterritorial Application of State Wage and Hours Laws, 29 A.L.R.7th Art. 7 (2018).

Am. Jur. 48A Am. Jur. 2d, Labor, § 2551 et seq.

C.J.S. 51B C.J.S., Labor, § 1017 et seq.

30 C.J.S., Employer-Employee, § 132 et seq.

51 C.J.S., Lab Rel. § 1165.

11-4-201. Title.

This subchapter shall be known as the “Minimum Wage Act of the State of Arkansas”.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 16; A.S.A. 1947, § 81-318.

Case Notes

Class Action Certification.

Employees' motion for class certification pursuant to Fed. R. Civ. P. 23 was granted where: (1) the corporations currently employed approximately 820 employees at the Batesville facility; (2) the employees showed that the common legal question shared by the members of the proposed class was whether the Arkansas Minimum Wage Act (AMWA), § 11-4-201 et seq., and/or common law quantum meruit required the corporations to compensate their employees for donning and doffing related activities; (3) the proposed class members shared the same legal theory, which was that the corporations violated the AMWA by failing to pay them for all compensable work time and they all claimed that donning and doffing activities were compensable under AMWA and common law quantum meruit; (4) there was no indication that the class representatives' desire to receive additional compensation would be adverse to the class's interests and the class representatives indicated a willingness to prosecute their claims through qualified counsel. Ford v. Townsends of Ark., Inc., — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 46093 (E.D. Ark. Apr. 9, 2010).

Court granted the employees' motion for class certification under Fed. R. Civ. P. 23 in their action alleging that defendants violated the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., and the Arkansas Minimum Wage Act, § 11-4-201 et seq., by failing to compensate hourly employees for time spent donning, doffing, sanitizing required gear and equipment, walking to and from the production floor, and other related and required duties because the employees met the numerosity, commonality, typicality, and adequacy of representation requirements of R. 23(a), and they demonstrated that common issues predominated and that a class action was the superior method for adjudicating the employees' claims as required by R. 23(b)(3). Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 U.S. Dist. LEXIS 21859 (E.D. Ark. Feb. 22, 2012).

Because the court denied class certification under Fed. R. Civ. P. 23 in an earlier filed case on the ground that the named plaintiffs were not typical of or adequate representatives for the class, it was not a reason equally applicable to any later suit, so American Pipe applied and the statute of limitations was tolled by the prior action. Under Arkansas's savings statute, § 16-56-126, the tolling gave plaintiffs one year after certification was denied in the prior action to commence a new action and receive the full protection of the prior action, and because plaintiffs filed the instant action within that year, they received the maximum benefit of the tolling, except that they could not recover from any further back than October 1, 2006, because prior to October 1, 2006, the employer was exempt from the Arkansas Minimum Wage Act as it was subject to the minimum wage and overtime provisions of the Fair Labor Standards Act. Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 U.S. Dist. LEXIS 21859 (E.D. Ark. Feb. 22, 2012).

Costs.

Where employers prevailed in a suit under the Fair Labor Standards Act and the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., seeking unpaid overtime for employees classified as exempt, the employer, as a prevailing defendant, was not precluded from an award of costs because the FLSA was silent on this matter and no provision of the FLSA precluded such an award. Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881 (8th Cir. 2016).

Executive Exemption.

Certain team leaders were properly classified as exempt from overtime as working in an executive capacity under the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., because their recommendations regarding whether to discharge or retain probationary employees were given particular weight by management, particularly since they were each involved in at least one personnel decision. Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881 (8th Cir. 2016).

Summary Judgment Improper.

Trial court erred in granting the employee summary judgment on a claim that a shelter violated the Minimum Wage Act of the State of Arkansas where there were disputed issues of fact as to whether the employee had agreed to exclude sleep time from the computation of her paycheck or if she had agreed to a cap on her wages, and because of the conflicting testimony, it was impossible to discern that either party was entitled to judgment as a matter of law. Grant Cnty. Unified Cmty. Res. Council, Inc. v. Pennington, 2017 Ark. App. 116, 514 S.W.3d 509 (2017).

Cited: Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996).

11-4-202. Policy.

It is declared to be the public policy of the State of Arkansas to establish minimum wages for workers in order to safeguard their health, efficiency, and general well-being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to their health, efficiency, and well-being.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 1; A.S.A. 1947, § 81-319.

11-4-203. Definitions.

As used in this subchapter:

  1. [Repealed.]
  2. “Employ” means to suffer or to permit to work;
  3. “Employee” means any individual employed by an employer but shall not include:
    1. Any individual employed in a bona fide executive, administrative, or professional capacity or as an outside commission-paid salesperson who customarily performs his or her services away from his or her employer's premises taking orders for goods or services;
    2. Any student performing services for any school, college, or university in which he or she is enrolled and is regularly attending classes;
    3. Any individual employed by the United States;
    4. Any individual engaged in the activities of any educational, charitable, religious, or nonprofit organization in which the employer-employee relationship does not in fact exist or in which the services are rendered to the organizations gratuitously;
    5. Any bona fide independent contractor;
    6. Any individual employed by an agricultural employer who did not use more than five hundred (500) man-days of agricultural labor in any calendar quarter of the preceding calendar year;
    7. The parent, spouse, child, or other member of an agricultural employer's immediate family;
    8. An individual who:
      1. Is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment;
      2. Commutes daily from his or her permanent residence to the farm on which he or she is so employed; and
      3. Has been employed in agriculture less than thirteen (13) weeks during the preceding calendar year;
    9. A migrant who:
      1. Is sixteen (16) years of age or under and is employed as a hand-harvest laborer;
      2. Is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment;
      3. Is employed on the same farm as his or her parents; and
      4. Is paid the same piece-rate as employees over sixteen (16) years of age are paid on the same farm;
    10. Any employee principally engaged in the range production of livestock;
    11. Any employee employed in planting or tending trees, cruising, surveying, or felling timber or in preparing or transporting logs or other forestry products to the mill, processing plants, or railroad or other transportation terminal if the number of employees employed by his or her employer in the forestry or lumbering operations does not exceed eight (8);
    12. An employee employed by a nonprofit recreational or educational camp that does not operate for more than seven (7) months in any calendar year;
    13. A nonprofit child welfare agency employee who serves as a houseparent who is:
      1. Directly involved in caring for children who reside in residential facilities of the nonprofit child welfare agency and who are orphans, in foster care, abused, neglected, abandoned, homeless, in need of supervision, or otherwise in crisis situations that lead to out-of-home placements; and
      2. Compensated at an annual rate of not less than thirteen thousand dollars ($13,000) or compensated at an annual rate of not less than ten thousand dollars ($10,000) if the employee resides in the residential facility and receives board and lodging at no cost;
    14. An employee employed in connection with the publication of a weekly, semiweekly, or daily newspaper with a circulation:
      1. Of less than four thousand (4,000); and
      2. The major part of which is within the county in which the newspaper is published or counties contiguous to the county in which the newspaper is published;
    15. An employee employed on a casual basis in domestic service employment to provide:
      1. Babysitting services; or
      2. Companionship services for individuals who are unable to care for themselves because of age or infirmity;
    16. An employee engaged in the delivery of newspapers to retail subscribers;
    17. A home worker engaged in:
      1. Making wreaths composed principally of natural holly, pine, cedar, or other evergreens; and
      2. Harvesting natural holly, pine, cedar, and other evergreens used in making such wreaths; or
      1. An individual employed by an establishment that is an organized camp or a religious or nonprofit educational conference center if:
        1. The organized camp or a religious or nonprofit educational conference center does not operate for more than seven (7) months in a calendar year; or
        2. During the preceding calendar year, the average receipts of the organized camp or a religious or nonprofit educational conference center for any six (6) months of the preceding calendar year were not more than thirty-three and one-third percent (33 1/3%) of the average receipts of the organized camp or a religious or nonprofit educational conference center for the other six (6) months of the preceding calendar year.
        1. This subdivision (3)(R) is effective retroactively as of January 1, 2006.
        2. The retroactive effect of this subdivision (3)(R) does not impose liability on the Division of Labor or on an employee to repay damages, back wages, civil money penalties, or other moneys collected or paid by the division or received by an employee;
    1. “Employer” means any individual, partnership, association, corporation, business trust, the State of Arkansas, any political subdivision of the state, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.
    2. “Employer” shall not include any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee for any work week in which fewer than four (4) employees are employed;
  4. “Gratuities” means voluntary monetary contributions received by an employee from a guest, patron, or customer for services rendered;
  5. “Independent contractor” means any individual who contracts to perform certain work away from the premises of his or her employer, uses his or her own methods to accomplish the work, and is subject to the control of the employer only as to the result of his or her work;
  6. “Man-day” means any day during any portion of which an employee performs any agricultural labor. Any individual otherwise excluded as an employee under subdivision (3)(I) of this section shall be considered an employee in computing man-days of agricultural labor;
  7. “Occupation” means any occupation, service, trade, business, industry, or branch or group of industries or employment or class of employment in which employees are gainfully employed; and
  8. “Wage” means compensation due to an employee by reason of his or her employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to such deductions, charges, or allowances as may be permitted by this subchapter or by rules of the Director of the Division of Labor under this subchapter.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 2; 1977, No. 345, § 1; 1979, No. 1095, § 1; 1983, No. 698, § 1; A.S.A. 1947, § 81-320; Acts 1989, No. 360, § 1; 1999, No. 1369, § 1; 2001, No. 1423, § 1; 2003, No. 212, § 1; Acts 2006 (1st Ex. Sess.), No. 15, § 1; 2006 (1st Ex. Sess.), No. 16, § 1; 2007, No. 545, § 1; 2013, No. 457, § 1; 2013, No. 1128, § 1; 2019, No. 315, § 755; 2019, No. 910, §§ 5307, 5308.

Amendments. The 2013 amendment by No. 457 added (3)(R).

The 2013 amendment by No. 1128, in (3)(B), substituted “Any student” for “Students,” “he or she is” for “they are,” and “is” for “are.”

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (9).

The 2019 amendment by No. 910 repealed (1); and, in (3)(R)(ii) (b) , substituted “Division of Labor” for “Department of Labor” and “division” for “department”.

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

Research References

U. Ark. Little Rock L. Rev.

Survey of Arkansas Law, Labor Law, 1 U. Ark. Little Rock L.J. 217.

Survey of Legislation, 2001 Arkansas General Assembly, Labor Law, 24 U. Ark. Little Rock L. Rev. 493.

Case Notes

Employ.

In a case relating to a failure to pay overtime wages, an employer's mandatory donning and doffing activities clearly constituted “work” as contemplated by the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., despite the custom and practice under a collective-bargaining agreement; moreover, an exception for unionized employees under federal law was not engrafted into the Arkansas act. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856 (2016) (decision under prior law).

Cited: Venhaus v. Adams, 295 Ark. 606, 752 S.W.2d 20 (1988).

11-4-204. [Repealed.]

A.C.R.C. Notes. The repeal of this section by Acts 2019, No. 853, § 1, superseded the amendment of this section by Acts 2019, No. 315, § 756. The amendment by Act 315 substituted “rules” for “regulations” twice in subsection (a).

Publisher's Notes. This section, concerning the liberal construction of laws in this subchapter, was repealed by Acts 2019, No. 853, § 1, effective July 24, 2019. The section was derived from Acts 1968 (1st Ex. Sess.), No. 25, § 13; A.S.A. 1947, § 81–331; Acts 2006 (1st Ex. Sess.), No. 15, § 2; 2006 (1st Ex. Sess.), No. 16, § 2; 2019, No. 315, § 756.

11-4-205. Right of collective bargaining not affected.

Nothing in this subchapter, including the provisions of § 11-4-218(b), shall be deemed to interfere with, impede, or in any way diminish the right of employers and employees to bargain collectively through representatives of their own choosing in order to establish wages or other conditions of work.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 14; A.S.A. 1947, § 81-332; Acts 2017, No. 914, § 2.

A.C.R.C. Notes. Acts 2017, No. 914, § 1, provided: “Purpose.

The purpose of this act is to resolve questions that have arisen regarding:

“(1) The proper interpretation of § 11-4-205 and § 11-4-218(b); and

“(2) What activities constitute ‘work’ under the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., as interpreted by the Supreme Court in Gerber Products Company v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856.”

Amendments. The 2017 amendment inserted “including the provisions of § 11-4-218(b)”.

Case Notes

Application.

In a case relating to a failure to pay overtime wages, an employer's mandatory donning and doffing activities clearly constituted “work” as contemplated by the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., despite the custom and practice under a collective-bargaining agreement; moreover, an exception for unionized employees under federal law was not engrafted into the Arkansas act. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856 (2016) (decision under prior law).

11-4-206. Penalties.

    1. Any employer who willfully hinders or delays the Director of the Division of Labor or his or her authorized representative in the performance of his or her duties in the enforcement of this subchapter, willfully refuses to admit the director or his or her authorized representative to any place of employment, willfully fails to make, keep, and preserve any records as required under the provisions of this subchapter, willfully falsifies any such record, willfully refuses to make the record accessible to the director or his or her authorized representative upon demand, willfully refuses to furnish a sworn statement of the record or any other information required for the proper enforcement of this subchapter to the director or his or her authorized representative upon demand, willfully fails to post a summary of this subchapter or a copy of any applicable rules as required by § 11-4-216, pays or agrees to pay minimum wages at a rate less than the rate applicable under this subchapter, or otherwise willfully violates any provision of this subchapter or of any rule issued under this subchapter shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than fifty dollars ($50.00) and not more than one thousand dollars ($1,000) for each violation.
    2. For the purposes of this subsection, each violation shall constitute a separate offense.
  1. Any employer who willfully discharges or in any other manner willfully discriminates against any employee because the employee has made any complaint to his or her employer or to the director or his or her authorized representative that he or she has not been paid minimum wages in accordance with the provisions of this subchapter or because the employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this subchapter or because the employee has testified or is about to testify in any such proceeding shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than fifty dollars ($50.00) and not more than one thousand dollars ($1,000) for each violation.
  2. For the purposes of this section, each day that the violation continues shall constitute a separate offense.
  3. The director shall determine the amount of the penalty and shall consider the appropriateness of the penalty to the size of the business and the gravity of the violation.
  4. The determination by the director shall be final unless within fifteen (15) days after receipt of notice thereof by certified mail the person, firm, corporation, partnership, or association charged with the violation notifies the director in writing that he or she contests the proposed penalty. In the event that a penalty is contested, a final determination shall be made pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  5. Upon a final administrative determination, the amount of the penalty may be recovered in a civil action brought by the director in a court of competent jurisdiction without paying costs or giving bond for costs.
  6. Sums collected under this section shall be paid into the Department of Labor and Licensing Special Fund.
  7. Assessment of a civil penalty by the director shall be made no later than three (3) years after the date of the occurrence of the violation.
  8. In addition to the civil penalty provided by this section, the director is authorized to petition any court of competent jurisdiction, without paying costs or giving bond for costs, to enjoin or restrain any person, firm, corporation, partnership, or association who violates the provisions of this subchapter or any rule issued thereunder.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 11; A.S.A. 1947, § 81-329; Acts 2001, No. 1423, § 2; 2019, No. 315, § 757; 2019, No. 910, §§ 5309, 5310.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” and “rule” for “regulation” in (a)(1).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a)(1); and substituted “Department of Labor and Licensing Special Fund” for “Department of Labor Special Fund” in (g).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Labor Law, 24 U. Ark. Little Rock L. Rev. 493.

11-4-207. [Repealed.]

Publisher's Notes. This section, concerning the creation of the Labor Board, was repealed by Acts 2001, No. 1423, § 3. The section was derived from Acts 1968 (1st Ex. Sess.), No. 25, § 5; 1979, No. 996, § 1; A.S.A. 1947, § 81-323; Acts 1997, No. 250, § 58.

11-4-208. [Repealed.]

Publisher's Notes. This section, concerning the authority of the Labor Board, was repealed by Acts 2001, No. 1423, § 4. The section was derived from Acts 1968 (1st Ex. Sess.), No. 25, § 5; 1979, No. 996, § 1; A.S.A. 1947, § 81-323.

11-4-209. Director of the Division of Labor — Powers and duties.

  1. For any occupation, the Director of the Division of Labor shall make and revise such administrative rules, including definitions of terms, as he or she may deem appropriate to carry out the purposes of this subchapter or necessary to prevent the circumvention or evasion thereof and to safeguard the minimum wage rates established.
  2. The rules may include, but are not limited to, rules governing:
    1. Outside or commission salespersons;
    2. Learners and apprentices, their number, proportion, and length of service;
    3. Part-time pay, bonuses, and fringe benefits;
    4. Special pay for special or extra work;
    5. Permitted charges to employees or allowances for board, lodging, apparel, or other facilities or services customarily furnished by employers to employees;
    6. Allowances for gratuities; and
    7. Allowances for other special conditions or circumstances which may be usual in a particular employer-employee relationship.
  3. Rules shall be promulgated pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  4. The director or his or her authorized representatives shall:
    1. Have authority to enter and inspect the place of business or employment of any employer in the state for the purpose of:
      1. Examining and inspecting any or all books, registers, payrolls, and other records of any employer that in any way relate to or have a bearing upon the question of wages, hours, and other conditions of employment of any employees;
      2. Copying any or all of the books, registers, payrolls, and other records as he or she may deem necessary or appropriate; and
      3. Questioning employees for the purpose of ascertaining whether the provisions of this subchapter and rules issued under this subchapter have been and are being complied with;
    2. Have authority to require from the employer full and correct statements in writing, including sworn statements, with respect to wages, hours, names, addresses, and such information pertaining to his or her employees as the director or his or her authorized representative may deem necessary or appropriate;
    3. Publish all rules promulgated pursuant to this subchapter; and
    4. Otherwise implement and enforce the provisions of this subchapter and the rules issued under this subchapter.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 4; A.S.A. 1947, § 81-322; Acts 2001, No. 1423, § 5; 2019, No. 315, §§ 758-760; 2019, No. 910, § 5311.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” throughout the section.

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-4-210. Minimum wage.

    1. Beginning October 1, 2006, every employer shall pay each of his or her employees wages at the rate of not less than six dollars and twenty-five cents ($6.25) per hour except as otherwise provided in this subchapter.
    2. Beginning January 1, 2015, every employer shall pay each of his or her employees wages at the rate of not less than seven dollars and fifty cents ($7.50) per hour, beginning January 1, 2016, the rate of not less than eight dollars ($8.00) per hour, and beginning January 1, 2017, the rate of not less than eight dollars and fifty cents ($8.50) per hour, except as otherwise provided in this subchapter.
    3. Beginning January 1, 2019, every employer shall pay each of his or her employees wages at the rate of not less than nine dollars and twenty-five cents ($9.25) per hour, beginning January 1, 2020 the rate of not less than ten dollars ($10.00) per hour and beginning January 1, 2021 the rate of not less than eleven dollars ($11.00) per hour except as otherwise provided in this subchapter.
  1. With respect to any full-time student attending any accredited institution of education within this state and who is employed to work an amount not to exceed twenty (20) hours during weeks that school is in session or forty (40) hours during weeks when school is not in session, the rate of wage shall be equal to but not less than eighty-five percent (85%) of the minimum wage provided in this section.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 3; 1973, No. 13, § 1; 1975, No. 316, § 1; 1975 (Extended Sess., 1976), No. 1156, § 1; 1977, No. 345, §§ 2, 3; 1979, No. 996, § 3; 1981, No. 610, § 1; 1981, No. 667, § 1; 1983, No. 453, § 1; A.S.A. 1947, § 81-321; Acts 1987, No. 974, § 1; reen. Acts 1987, No. 987, § 1; Acts 1989, No. 360, § 2; 1989, No. 845, § 1; 1991, No. 544, § 1; 1993, No. 331, § 1; 1993, No. 568, § 1; 1997, No. 201, § 1; 2006 (1st Ex. Sess.), No. 15, § 3; 2006 (1st Ex. Sess.), No. 16, § 3; Init. Meas. 2014, No. 1, § 1; Init. Meas. 2018, No. 5, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 987, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Acts 1989, No. 360, § 2, also included at the beginning of (a)(1) the following language: “Beginning January 1, 1989.”

As enacted, the 1991 amendment in (a)(1) began “Beginning July 1, 1991.”

Publisher's Notes. The 2018 amendment was proposed by petition of the people and approved at the November 6, 2018 general election by a vote of 603,346 for and 278,164 against.

Amendments. The 2014 amendment added (a)(2).

The 2018 amendment added (a)(3).

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

Init. Meas. 2018, No. 5, § 1: Dec. 6, 2018.

11-4-211. Overtime.

  1. Except as otherwise provided in this section and §§ 11-4-210 and 11-4-212, no employer shall employ any of his or her employees for a work week longer than forty (40) hours unless the employee receives compensation for his or her employment in excess of the hours above specified at a rate not less than one and one-half (1 ½) times the regular rate of pay at which he or she is employed.
  2. The provisions regarding the payment of wages at one and one-half (1 ½) times the regular rate of pay for overtime services shall not be applicable with respect to agricultural employees.
  3. Neither the provisions of this section nor the provisions of any other law of this state shall be construed to require the payment of compensation at a greater rate than the normal rate for services performed by agricultural employees in excess of forty (40) hours per week.
  4. This section shall not apply to any employee exempt from the overtime requirements of the federal Fair Labor Standards Act pursuant to the provisions of 29 U.S.C. § 213(b)(1)-(24) and (b)(28)-(30), as they existed on March 1, 2006.
  5. No public agency shall be deemed to have violated this section with respect to the employment of any employee in fire protection activities or law enforcement activities, including security personnel in correctional institutions, provided that the public agency pays overtime pay in compliance with 29 U.S.C. § 207(k), as it existed on March 1, 2006.
  6. In lieu of overtime compensation, the State of Arkansas and any political subdivision of the state may award compensatory time off at a rate of not less than one and one-half (1 ½) hours for each hour of employment for which overtime compensation is required. The compensatory time off may be provided only:
      1. Pursuant to applicable provisions of a collective bargaining agreement, memorandum of understanding, or other agreement between the public agency and representatives of such employees.
      2. In the case of employees not covered by subdivision (f)(1)(A) of this section, an agreement or understanding arrived at between the employer and employee before the performance of the work; and
    1. If the employee has not terminated employment and has not accrued compensatory time in excess of the following:
      1. Four hundred eighty (480) hours for police, firefighters, emergency response personnel, and employees engaged in seasonal activities; or
      2. Two hundred forty (240) hours for any public employee not otherwise exempt or covered by subdivision (f)(2)(A) of this section.
  7. By rule, the Director of the Division of Labor may authorize employment in excess of the standard set by subsection (a) of this section or may authorize the calculation of overtime on a basis other than the regular rate of pay required by subsection (a) of this section for employment:
    1. Necessitating irregular hours of work;
    2. At a piece rate;
    3. Paying on a commission basis in a retail or service establishment;
    4. In a hospital or enterprise engaged in the care of the sick, the aged, or individuals with mental illness;
    5. By an independently-owned-and-controlled local enterprise engaged in the wholesale or bulk distribution of petroleum products; and
    6. Under a collective bargaining agreement.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 3; 1977, No. 345, §§ 4, 5; 1983, No. 453, § 2; A.S.A. 1947, §§ 81-321, 81-321.1; Acts 1991, No. 544, § 2; 2006 (1st Ex. Sess.), No. 15, § 4; 2006 (1st Ex. Sess.), No. 16, § 4; 2007, No. 545, § 2; 2019, No. 315, § 761; 2019, No. 910, § 5312.

Amendments. The 2019 amendment by No. 315 deleted “or regulation” following “rule” in the introductory language of (g).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the introductory language of (g).

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Labor Law, 1 U. Ark. Little Rock L.J. 217.

Case Notes

Class Action.

In a case alleging violations of the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., a circuit court did not abuse its discretion in certifying a class action under the less rigorous analysis of Ark. R. Civ. P. 23. The question of whether an employer's lunch auto-deduct policy was illegal and whether its time reclamation policy was reasonable could have been determined on a class-wide basis and was common for all putative class members. Whether the employer had a reasonable reclamation process for claiming overtime was a question that predominated over individual issues. On the issue of superiority, even though the employer was permitted to defend as it saw fit, the question was really more about how to best manage the case, something that the circuit court had broad discretion to determine. Ark. Dep't of Veterans Affairs v. Okeke, 2015 Ark. 275, 466 S.W.3d 399 (2015).

In cases arising from the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., it was an abuse of discretion to certify a class of hourly, nonnursing employees alleging that they were not paid for overtime hours worked because a determination of liability would have required a highly individualized inquiry as to each employee's hours during a given week. Under the predominance requirement of Ark. R. Civ. P. 23, there was no one set of operative facts to establish liability to any given class member; if the employee did not work through lunch, and if the employee failed to work more than 40 hours in a given work week, there was no liability. Ark. Dep't of Veterans Affairs v. Mallett, 2015 Ark. 428, 474 S.W.3d 861 (2015).

Work.

In a case relating to a failure to pay overtime wages, an employer's mandatory donning and doffing activities clearly constituted “work” as contemplated by the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., despite the custom and practice under a collective-bargaining agreement; moreover, an exception for unionized employees under federal law was not engrafted into the Arkansas act. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856 (2016) (decision under prior law).

11-4-212. Allowance for gratuities.

  1. Every employer of an employee engaged in any occupation in which gratuities have been customarily and usually constituted and have been recognized as a part of remuneration for hiring purposes shall be entitled to an allowance for gratuities as a part of the hourly wage rate provided in § 11-4-210 in an amount of no less than three dollars and sixty-two cents ($3.62) per hour, provided that the employee actually received that amount in gratuities and that the application of the foregoing gratuity allowances results in payment of wages other than gratuities to tipped employees, including full-time students subject to the provisions of § 11-4-210, of no less than two dollars and sixty-three cents ($2.63) per hour.
  2. In determining whether an employee received in gratuities the amount claimed, the Director of the Division of Labor may require the employee to show to the satisfaction of the director that the actual amount of gratuities received by him or her during any work week was less than the amount determined by the employer as the amount by which the wage paid the employee was deemed to be increased under this section.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 3; 1973, No. 13, § 1; 1975, No. 316, § 1; 1975 (Extended Sess., 1976), No. 1156, § 1; 1977, No. 345, § 3; 1979, No. 996, § 4; 1981, No. 610, § 1; 1981, No. 667, § 1; A.S.A. 1947, § 81-321; reen. Acts 1987, No. 987, § 1; 2006 (1st Ex. Sess.), No. 15, § 7; 2006 (1st Ex. Sess.), No. 16, § 7; 2007, No. 707, § 1; 2019, No. 910, § 5313.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b).

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 987, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

Research References

Ark. L. Rev.

J. Dalton Person, Comment: Exotic Dancers & FLSA: Are Strippers Employees?, 69 Ark. L. Rev. 173 (2016).

11-4-213. Allowance for furnishing board, lodging, apparel, etc.

  1. An employer of an employee engaged in an occupation in which board, lodging, apparel, or other items and services are customarily and regularly furnished to the employee for his or her benefit is entitled to an allowance for the reasonable value of board, lodging, apparel, or other items and services as part of the hourly wage rate provided in § 11-4-210 in an amount not to exceed the fair and reasonable cost of the board, lodging, apparel, or other items and services.
  2. The determination of reasonable cost of the board, lodging, apparel, or other items and services shall be based on 29 U.S.C. § 203(m), as it existed on January 1, 2019, and 29 C.F.R. § 531.1 et seq.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 3; 1973, No. 13, § 1; A.S.A. 1947, § 81-321; Acts 2019, No. 853, § 2; 2019, No. 910, § 5314.

A.C.R.C. Notes. The amendment of this section by Acts 2019, No. 853, supersedes the amendment by Acts 2019, No. 910, § 5314, which substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b).

Amendments. The 2019 amendment by No. 853 substituted “the fair and reasonable cost of the board, lodging, apparel, or other items and services” for “thirty cents (30¢) per hour” in (a); rewrote (b); and made stylistic changes.

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b).

11-4-214. Temporary special exemptions — Definition.

  1. Any person handicapped by lack of skill, age, or physical or mental deficiency or injury in any way that his or her earning capacity is impaired shall be granted a temporary special exemption license or permit authorizing the employment of the person at wages lower than the minimum prescribed in this subchapter until such time as the Director of the Division of Labor shall hold a hearing and prescribe rules regarding exemption of these persons as authorized in this section.
    1. The director may provide by rule, after notice and public hearing at which any person may be heard, for the employment in any occupation of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury at wages lower than the minimum wage rate provided in § 11-4-210 as he or she may find appropriate to prevent curtailment of opportunities for employment, to avoid undue hardship, and to safeguard the minimum wage rate under this subchapter.
    2. In addition, the director, by rule or special order, may provide for the employment of handicapped clients in work activities centers under special certificates at wages that are less than the minimum prescribed in § 11-4-210 that the director determines constitutes equitable compensation for the clients in work activities centers.
  2. For the purposes of this section, the term “work activities centers” shall mean centers planned and designed exclusively to provide therapeutic activities for handicapped clients whose physical and mental impairment is so severe as to make their productivity capacities inconsequential.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 6; A.S.A. 1947, § 81-324; Acts 2001, No. 1423, § 6; 2019, No. 315, § 762; 2019, No. 910, § 5315.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a); and substituted “rule” for “regulation” twice in (b).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Labor Law, 24 U. Ark. Little Rock L. Rev. 493.

11-4-215. Learners, apprentices, and full-time students.

  1. For any occupation, the Director of the Division of Labor may provide, by rule, after a public hearing at which any person may be heard, for the employment in the occupation of learners, apprentices, and full-time students at wages lower than the minimum wage rate provided in § 11-4-210(b) as he or she may find appropriate to prevent curtailment of opportunities for employment and to safeguard the minimum wage rate under this subchapter.
  2. No employee shall be employed at wages fixed pursuant to this section, except under special license issued under applicable rules of the director.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 7; A.S.A. 1947, § 81-325; Acts 2001, No. 1423, § 7; 2019, No. 315, § 763; 2019, No. 910, § 5316.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” in (a); and substituted “rules” for “regulations” in (b).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-4-216. Posting of law.

  1. Every employer subject to any provisions of this subchapter or of any rules issued under this subchapter shall keep a summary of this subchapter, approved by the Director of the Division of Labor, and copies of any applicable rules issued under this subchapter, or a summary of the rules approved by the director, posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed.
  2. Employers shall be furnished copies of the summaries of this statute and rules by the director on request without charge.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 9; A.S.A. 1947, § 81-327; Acts 2001, No. 1423, § 8; 2019, No. 315, § 764; 2019, No. 910, § 5317.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” throughout the section.

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-4-217. Records kept by employer.

  1. Every employer subject to any provision of this subchapter or of any rule issued under this subchapter shall make and keep for a period of not less than three (3) years in or about the premises wherein any employee is employed a record of the name, address, and occupation of each of his or her employees, the rate of pay, the amount paid each pay period to each employee, and such other information as the Director of the Division of Labor shall prescribe by rule as necessary or appropriate for the enforcement of the provisions of this subchapter or of the rules under this subchapter.
  2. The records shall be open for inspection or transcription by the director or his or her authorized representative at any reasonable time.
  3. Every employer shall furnish to the director or to his or her authorized representative on demand a sworn statement of the records and information upon forms prescribed or approved by the director.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 8; A.S.A. 1947, § 81-326; Acts 2001, No. 1423, § 9; 2019, No. 315, § 765; 2019, No. 910, § 5318.

Amendments. The 2019 amendment by No. 315, in (a), substituted “rule” for “regulation” twice and substituted “rules” for “regulations”.

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-4-218. Employee's remedies.

    1. Any employer who pays any employee less than the minimum wages, including overtime compensation or compensatory time off as provided by this subchapter, to which the employee is entitled under or by virtue of this subchapter shall:
      1. Pay any applicable civil penalties; and
      2. Be liable to the employee affected for:
        1. The full amount of the wages, less any amount actually paid to the employee by the employer; and
        2. Costs and such reasonable attorney's fees as may be allowed by the court.
    2. The employee may be awarded an additional amount up to, but not greater than, the amount under subdivision (a)(1)(B)(i) of this section to be paid as liquidated damages if the employee proves the violation was willful.
  1. Any agreement between the employee and employer to work for less than minimum wages shall be no defense to the action.
  2. The venue of the action shall lie in the circuit court of any county in which the services that are the subject of the employment were performed.
    1. The Director of the Division of Labor shall have the authority to fully enforce this subchapter by instituting legal action to recover any wages that he or she determines to be due to employees under this subchapter.
    2. No legal action shall be brought by the director until after notice and opportunity for hearing pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq., and entry of a final administrative order.
      1. Following any appeals taken pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq., the director shall be entitled to enforce his or her final administrative order in any court of competent jurisdiction without paying costs or giving bond for costs.
      2. The director's findings of fact shall be conclusive in any such proceeding.
    1. An employee may bring an action for equitable and monetary relief against an employer, including the State of Arkansas or a political subdivision of the state, if the employer pays the employee less than the minimum wages, including overtime wages, to which the employee is entitled under or by virtue of this subchapter.
    2. If the employee brings an action under this subsection, then any complaint before the director by the employee on the same matter shall be dismissed with respect to that employee.
      1. The employee shall not be required to exhaust administrative remedies before bringing an action.
      2. There shall be no procedural, pleading, or burden of proof requirements beyond those that apply generally to civil suits in order to maintain the action.
    3. An employee shall not become a party plaintiff to an action under subdivision (e)(1) of this section unless he or she gives consent in writing to become a party to the action and files the consent in the court in which the action is brought.
  3. When construing this subchapter, a court may look for guidance to state and federal decisions interpreting the Fair Labor Standards Act of 1938, as amended and codified in 29 U.S.C. § 201 et seq., as it existed on January 1, 2017, which decisions and act shall have persuasive authority only.
  4. The statute of limitations for causes of action under this subchapter is two (2) years.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 12; 1971, No. 731, § 1; A.S.A. 1947, § 81-330; Acts 1997, No. 221, § 1; 1999, No. 981, § 1; 2006 (1st Ex. Sess.), No. 15, § 5; 2006 (1st Ex. Sess.), No. 16, § 5; 2017, No. 914, § 3; 2019, No. 853, §§ 3-5; 2019, No. 910, § 5319.

A.C.R.C. Notes. Acts 2017, No. 914, § 1, provided: “Purpose.

The purpose of this act is to resolve questions that have arisen regarding:

“(1) The proper interpretation of § 11-4-205 and § 11-4-218(b); and

“(2) What activities constitute ‘work’ under the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., as interpreted by the Supreme Court in Gerber Products Company v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856.”

Amendments. The 2017 amendment added (f).

The 2019 amendment by No. 853 added “if the employee proves the violation was willful” in (a)(2); and added (e)(4) and (g).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (d)(1).

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

Research References

Ark. L. Rev.

Robert C. Dalby, Comment: Too Plain to Be Misunderstood: Sovereign Immunity Under the Arkansas Constitution, 71 Ark. L. Rev. 761 (2019).

Case Notes

Constitutionality.

Supreme Court of Arkansas concludes that the legislative waiver of sovereign immunity in subsection (e) of this section is repugnant to Ark. Const., Art. 5, § 20. In reaching this conclusion, the Supreme Court interprets the constitutional provision, “The State of Arkansas shall never be made a defendant in any of her courts”, precisely as it reads. The drafters of the current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead used the word “never”. The people of the State of Arkansas approved this change when ratifying the current constitution. The General Assembly does not have the power to override a constitutional provision. To the extent subsection (e) of this section directly contradicts the constitution, it must fail. Bd. of Trs. of the Univ. of Ark. v. Andrews, 2018 Ark. 12, 535 S.W.3d 616 (2018).

In a class action suit under the Arkansas Minimum Wage Act, the circuit court’s denial of the defendant’s motion to dismiss on sovereign immunity grounds was reversed per the holding in Board of Trustees v. Andrews, 2018 Ark. 12, which held unconstitutional the provision of the Arkansas Minimum Wage Act, § 11-4-218(e), that allows the State to be named as a defendant. The avenue for financial redress is through the Claims Commission. Ark. VA v. Mallett, 2018 Ark. 217, 549 S.W.3d 351 (2018).

Failure to Pay Overtime.

In a case relating to a failure to pay overtime wages, an employer's mandatory donning and doffing activities clearly constituted “work” as contemplated by the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., despite the custom and practice under a collective-bargaining agreement; moreover, an exception for unionized employees under federal law was not engrafted into the Arkansas act. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856 (2016) (decision under prior law).

Statute of Limitations.

Three-year statue of limitations set forth in Ark. Code Ann. § 16-56-105 applies to private causes of action brought pursuant to subsection (e) of this section, the Minimum Wage Act of the State of Arkansas, because subsection (e) constitutes a liability created expressly by statute, and it does not include a specific limitations provision; where a cause of action is brought pursuant to a statute that does not expressly provide a limitations period, § 16-56-105 is the appropriate limitations provision. Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225 (2011).

11-4-219. Judicial review.

  1. Any interested person in any occupation for which any administrative rule has been issued under the provisions of this subchapter who may be aggrieved by any rule may obtain a review thereof in the circuit court of the county of the residence of the aggrieved party by filing in the court within twenty (20) days after the date of publication of the rule a written petition praying that the rule be modified or set aside.
  2. A copy of the petition shall be served upon the Director of the Division of Labor.
    1. The court shall review the record of the proceedings before the director, and the director's findings of fact shall be affirmed if supported by substantial evidence. The court shall determine whether the rule is in accordance with law.
    2. If the court determines that the rule is not in accordance with law, it shall remand the case to the director with directions to modify or revoke the rule.
    1. If application is made to the court for leave to adduce additional evidence by any aggrieved party, the party shall show to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence before the director.
    2. If the court finds that the evidence is material and that reasonable grounds exist for failure of the aggrieved party to adduce the evidence in prior proceedings, the court shall remand the case to the director with directions that the additional evidence be taken before the director.
    3. The director may modify his or her findings and conclusions, in whole or in part, by reason of the additional evidence.
  3. Hearings in the circuit court on all appeals taken under the provisions of this subchapter shall take precedence over all matters except matters of the same character. The jurisdiction of the court shall be exclusive, and its judgment and decree shall be final, except that it shall be subject to review by the Supreme Court.
    1. The commencement of proceedings under subsections (a)-(d) of this section, unless specifically ordered by the court, shall not operate as a stay of an administrative rule issued under the provisions of this subchapter.
    2. The court shall not grant any stay of an administrative rule unless the person complaining of the rule shall file an amount in the court, undertaking with a surety satisfactory to the court, for payment to the employees affected by the rule in the event that the rule is affirmed. The surety shall be in an amount by which the compensation the employees are entitled to receive under the rule exceeds the compensation they actually receive while the stay is in effect.

History. Acts 1968 (1st Ex. Sess.), No. 25, § 10; A.S.A. 1947, § 81-328; Acts 2001, No. 1423, § 10; 2019, No. 315, §§ 766-768; 2019, No. 910, § 5320.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” throughout (a), (c), and (f).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Labor Law, 24 U. Ark. Little Rock L. Rev. 493.

11-4-220. Person entitled to file a claim.

  1. Any employee covered by this subchapter may file a claim with the Director of the Division of Labor charging that an employer has violated § 11-4-210 or § 11-4-211 as to any employee or other person.
  2. The director shall promptly investigate each claim.
  3. The name of any employee identified in a claim shall be kept confidential until the director issues an administrative complaint or the director is ordered to release the information by order of a court of competent jurisdiction.

History. Acts 2006 (1st Ex. Sess.), No. 15, § 6; 2006 (1st Ex. Sess.), No. 16, § 6; 2019, No. 910, § 5321.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Effective Dates. Acts 2006 (1st Ex. Sess.), Nos. 15 and 16, § 8, provide: “This act shall become effective on October 1, 2006.”

11-4-221. Relief from liability under this subchapter for failure to pay minimum wage or overtime compensation.

  1. Except as provided in subsection (b) of this section, an employer is not subject to liability under this subchapter, on account of the failure of the employer to pay an employee minimum wages or to pay an employee overtime compensation, for or on account of any of the following activities of the employee:
    1. Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which the employee is employed to perform; and
      1. An activity that is preliminary to or postliminary to the principal activity or activities, which occurs either before the time on any particular workday at which the employee commences or subsequent to the time on any particular workday at which he or she ceases the principal activity or activities.
      2. For purposes of subdivision (a)(2)(A) of this section, the use of an employer's vehicle for travel by an employee and activities performed by an employee that are incidental to the use of the vehicle for commuting shall not be considered part of the employee's principal activities if the use of the vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of the employee.
  2. Notwithstanding the provisions of subsection (a) of this section that relieve an employer from liability and punishment with respect to any activity, the employer is not relieved from liability if the activity is compensable by either:
    1. An express provision of a written or oral contract in effect at the time of the activity between the employee, his or her agent, or collective-bargaining representative and his or her employer; or
    2. A custom or practice in effect at the time of the activity at the establishment or other place where the employee is employed covering the activity, not inconsistent with a written or oral contract in effect at the time of the activity, between the employee, his or her agent, or collective-bargaining representative and his or her employer.
  3. For the purposes of subsection (b) of this section, an activity shall be considered as compensable under a contract provision or a custom or practice only when the activity is engaged in during the portion of the day with respect to which it is compensable.
  4. In the application of the minimum wage and overtime compensation provisions of this subchapter, in determining the time for which an employer employs an employee with respect to walking, riding, traveling, or other preliminary or postliminary activities described in subsection (a) of this section, the time, but only that time, during which the employee engages in any activity which is compensable within the meaning of subsections (b) and (c) of this section shall be counted.
  5. This section applies only to conduct occurring on or after April 5, 2017.

History. Acts 2017, No. 914, § 4.

A.C.R.C. Notes. Acts 2017, No. 914, § 1, provided: “Purpose.

The purpose of this act is to resolve questions that have arisen regarding:

“(1) The proper interpretation of § 11-4-205 and § 11-4-218(b); and

“(2) What activities constitute ‘work’ under the Minimum Wage Act of the State of Arkansas, § 11-4-201 et seq., as interpreted by the Supreme Court in Gerber Products Company v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856.”

11-4-222. Political subdivisions prohibited from requiring more than federal or state requirements from employers — Definitions.

  1. As used in this section:
    1. “Employee” means an individual employed in this state by an employer;
      1. “Employer” means an individual, sole proprietorship, partnership, limited liability company, corporation, or other entity that does business in this state.
      2. However, “employer” does not include a public employer;
    2. “Employment benefit” means anything of value that an employee may receive from an employer in addition to wages and salary, including without limitation:
      1. Health, disability, retirement, profit-sharing, and death benefits;
      2. Group accidental death and dismemberment benefits;
      3. Paid or unpaid days off from work for holidays, sick leave, vacation, and personal necessity; and
      4. Terms of employment, notice of scheduling, attendance, or leave policies;
    3. “Political subdivision” means a county, city, or town in this state; and
    4. “Public employer” means the State of Arkansas and each political subdivision of the state.
  2. A political subdivision shall not establish, mandate, or otherwise require an employer to provide to an employee a minimum or living wage rate or employment benefit that exceeds the requirements of federal laws or regulations or state laws or rules.

History. Acts 2017, No. 643, § 2.

A.C.R.C. Notes. Acts 2017, No. 643, § 1, provided: “Legislative intent.

The General Assembly finds that:

“(1)(A) Arkansas employers are best able to grow and invest in their communities when operating under a clear, consistent regulatory system that imposes only those burdens absolutely necessary to promote the public welfare.

“(B) Allowing localities to mandate employer-provided benefits would create a patchwork of local regulations discouraging employers from growing and investing and imposing significant compliance burdens on them; and

“(C) Furthermore, locally mandated benefits frustrate the General Assembly's goal of a thriving statewide economy and place Arkansas employers at a competitive disadvantage to employers in other states not burdened with unnecessary local regulations; and

“(2) Preemption of burdensome and unnecessary local government mandates on employers to provide employee benefits provides a stable environment for Arkansas employers and promotes economic development.”

Acts 2017, No. 643, § 3, provided: “Applicability. Section 2 of this act does not preempt any state law or local minimum wage ordinance requirements in effect on the effective date of this act [August 1, 2017].”

Subchapter 3 — Wage Disputes

Effective Dates. Acts 1973, No. 147, § 2: Feb. 19, 1973. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that the public interest demands that wage earners in the State be given effective legal remedies and recourse to be able to recover hard earned wages. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health, safety and welfare, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

11-4-301. Definition.

As used in this subchapter, “labor” means work or service performed by a person employed for a period of time for which the wages or salary or remuneration for the work or services is to be paid at stated intervals or at the termination of the employment or for physical work actually performed by an independent contractor if the amount in controversy does not exceed two thousand dollars ($2,000).

History. Acts 1937, No. 86, § 1; Pope's Dig., § 8537; Acts 1941, No. 431, § 1; 1973, No. 147, § 1; A.S.A. 1947, § 81-311; Acts 2009, No. 622, § 1.

Case Notes

Excess Claims.

Claims presented in excess of the jurisdictional amount may be stricken if objected to. Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955).

11-4-302. Act cumulative.

This subchapter is a substitute for Acts 1923, No. 380, but apart from that act is cumulative in its effect and shall not be so construed as to nullify or repeal the laws now existing with regard to liens.

History. Acts 1937, No. 86, § 6; Pope's Dig., § 8541; A.S.A. 1947, § 81-315.

11-4-303. Director of Division of Labor to conduct hearing.

  1. Upon application of either employer or employee, the Director of the Division of Labor or any person authorized by the director shall have authority to inquire into, hear, and decide disputes arising from wages earned and shall allow or reject any deduction from wages.
  2. Upon motion of either employer or employee, the amount found to be due may be paid in the presence of the director or person designated by him or her, and after final hearing by the director or person appointed by him or her, he or she shall file in the office of the Division of Labor a copy of findings and facts and his or her award.
  3. The amount of the award of the director shall be presumed to be the amount of wages, if any, due and unpaid to the employee.

History. Acts 1937, No. 86, § 2; Pope's Dig., § 8538; A.S.A. 1947, § 81-312; Acts 2019, No. 910, § 5322.

Amendments. The 2019 amendment substituted “Director of Division of Labor” for “Director of Department of Labor” in the section heading; substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a); and substituted “Division of Labor” for “Department of Labor” in (b).

Research References

Ark. L. Rev.

Constitutional Law — Separation of Powers — Legislative Delegation of Judicial Powers, 10 Ark. L. Rev. 213.

U. Ark. Little Rock L.J.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Case Notes

Constitutionality.

This section does not amount to an unconstitutional delegation of judicial power to the commissioner of labor nor is it vague and indefinite as to method of appeal. Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955).

11-4-304. Judicial review.

  1. If either employer or employee shall fail or refuse to accept the findings of the Director of the Division of Labor, then either shall have the right to proceed at law as provided.
  2. If the claim is meritorious, and if within the discretion of the director the claimant's lack of financial ability entitles him or her to the services of the Division of Labor, the director in the name of the State of Arkansas, for the benefit of the claimant, may institute action in any court of competent jurisdiction, without paying costs or giving bond for costs, and shall be entitled to all remedies available to litigants in the prosecution of actions and their enforcement, if successful.
  3. Nothing in this section shall be construed so as to relieve an unsuccessful defendant from paying costs.

History. Acts 1937, No. 86, § 2; Pope's Dig., § 8538; A.S.A. 1947, § 81-312; Acts 2019, No. 910, § 5323.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a); and substituted “Division of Labor” for “Department of Labor” in (b).

Research References

Ark. L. Rev.

Constitutional Law — Separation of Powers — Legislative Delegation of Judicial Powers, 10 Ark. L. Rev. 213.

U. Ark. Little Rock L.J.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Case Notes

Constitutionality.

This section does not amount to an unconstitutional delegation of judicial power to the commissioner of labor nor as being vague and indefinite as to method of appeal. Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955).

11-4-305. Enforcement of laborer's lien.

  1. In all cases where the claimant is entitled to a laborer's lien or a lien on a thing or property worked on, the lien may be enforced as otherwise provided for by law, except that where a sheriff or constable is authorized to take charge of property subject to a lien claim and hold it subject to the decision of the court, as in cases of attachment, the sheriff or constable, upon the claimant's otherwise complying with the law regarding attachments and upon the claimant's filing an affidavit with the clerk of the court that he or she is unable to make an attachment bond, shall take the defendant's receipt for the property described in the plaintiff's statement as required by § 18-43-106, and the property shall be left in the possession of the defendant.
  2. The defendant shall exercise full dominion over the property as if it had not been attached except that he or she may not give it away. The defendant may sell, pledge, mortgage, or otherwise alienate or encumber the property if the proceeds therefrom bear a reasonable relation to the value of the lien, so that the person purchasing or taking an encumbrance upon the property shall possess superior rights to the lien claimant.
    1. The defendant, however, selling or encumbering the property shall be held accountable to the court for the proceeds of the sale or encumbrance and shall file with the clerk of the court at the time of making the sale, or charging the property with an encumbrance, a statement giving the name of the purchaser or encumbrancer, his or her address, and the amount realized from the sale or encumbrance.
    2. The defendant shall also notify the plaintiff of the filing of the statement.
  3. If, upon the successful termination of the litigation in favor of the lien claimant, the defendant fails within five (5) days to pay into the registry of the court where the action was originally instituted the proceeds from the sale or encumbrance, the defendant shall be held to be in contempt of court and punished as for contempt.

History. Acts 1937, No. 86, § 4; Pope's Dig., § 8539; A.S.A. 1947, § 81-313.

Cross References. Laborer's liens, § 18-43-101 et seq.

11-4-306. Fees prohibited.

The Director of the Division of Labor or any person designated by him or her shall not charge or be permitted to accept any fees or remuneration whatsoever from any person for the performance of any duties under this subchapter.

History. Acts 1937, No. 86, § 5; Pope's Dig., § 8540; A.S.A. 1947, § 81-314; Acts 2019, No. 910, § 5324.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

Subchapter 4 — Payment of Wages

Effective Dates. Acts 1889, No. 61, § 4: effective on passage.

Acts 1899, No. 172, § 3: effective 90 days after passage.

Acts 1905, No. 210, § 2: effective on passage.

Acts 1907, No. 315, § 4: effective 30 days after passage.

Acts 1909, No. 13, § 3: July 1, 1909.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Am. Jur. 48A Am. Jur. 2d, Labor, § 2581 et seq.

Ark. L. Rev.

Legal Control of Business in Arkansas, 5 Ark. L. Rev. 137.

C.J.S. 30 C.J.S., Employer-Employee, § 177 et seq.

51B C.J.S., Labor, § 1175 et seq.

11-4-401. Payment semimonthly.

  1. Except as provided in subsection (c) of this section, all corporations doing business in this state that employ any salespersons, mechanics, laborers, or other servants for the transaction of business shall pay the wages of the employees no less frequently than semimonthly.
  2. Any corporation that shall, through its president or otherwise, violate subsections (a) and (c) of this section shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) for each offense.
  3. All corporations with an annual gross income of five hundred thousand dollars ($500,000), or more, doing business in this state who shall employ any salespersons, mechanics, laborers, or other servants for the transaction of their business shall pay the wages of their management level and executive employees who are exempt under the provisions of Section 13 of the Fair Labor Standards Act, from the provisions of Sections 6 and 7 of that act, and who are compensated at a gross rate in excess of twenty-five thousand dollars ($25,000) per year, at a minimum of once each calendar month.

History. Acts 1909, No. 13, §§ 1, 2, p. 21; C. & M. Dig., §§ 7131, 7132; Pope's Dig., §§ 9117, 9118; A.S.A. 1947, §§ 81-301, 81-302; Acts 1991, No. 1113, § 1; 2017, No. 475, § 1.

Amendments. The 2017 amendment, in (a), substituted “that” for “who shall”, deleted “their” preceding “business”, and inserted “no less frequently than”.

U.S. Code. Sections 6, 7, and 13 of the Fair Labor Standards Act, referred to in this section, are codified as 29 U.S.C. §§ 206, 207, and 213.

Case Notes

Contract Void.

A contract for payment other than semimonthly is void. Ark. Stave Co. v. State, 94 Ark. 27, 125 S.W. 1001 (1910).

11-4-402. Discount for advance payment — Payments made in currency.

  1. It shall be unlawful for any milling or manufacturing company, or any other person, corporation, or company employing persons to labor for them in the State of Arkansas, to discount the wages of their employees or laborers when payment is made or demanded before the regular paydays more than at the rate of ten percent (10%) per annum from the date of payment to the regular payday.
      1. All employees shall be paid in currency or by check or electronic direct deposit into the employee's account.
      2. The employee may opt out of electronic direct deposit by providing the employer a written statement requesting payment by check.
    1. Notwithstanding any provision to the contrary, an employee has a right to be paid in currency if the employer has at any time paid the employee with a check drawn on an account with insufficient funds.
    2. This subsection does not apply to any demand or claim by the Division of Labor.
  2. Any evasion or violation of this section shall be usury and a misdemeanor. The person, company, or corporation, or his, her, or its agents, violating this section shall be fined in any sum not less than ten dollars ($10.00) nor more than five hundred dollars ($500), and the entire property of the person, company, or corporation shall be subject to the payment of the fine and costs.

History. Acts 1899, No. 172, §§ 1, 2, p. 310; C. & M. Dig., § 7356; Pope's Dig., § 9395; A.S.A. 1947, §§ 81-303, 81-304; Acts 2003, No. 925, § 1; 2019, No. 910, § 5325.

Amendments. The 2019 amendment, in (b)(3), deleted the designation “(b)” following “subsection”, and substituted “Division of Labor” for “Department of Labor”.

11-4-403. Payment by evidence of indebtedness.

  1. It shall be unlawful for any corporation, company, firm, or person engaged in any trade or business in this state, either directly or indirectly, to issue, sell, give, or deliver to any person employed by the corporation, company, firm, or person, in payment of wages, whether the wages are earned or not, any scrip, token, draft, check, or other evidence of indebtedness payable or redeemable otherwise than in lawful money, at the next regular payday of the corporation, company, firm, or person.
  2. If the scrip, token, draft, check, or other evidence of indebtedness is issued, sold, given, or delivered to the laborer, it shall be construed, taken, and held in all courts and places to be a promise to pay the sum specified therein in lawful money by the corporation, company, firm, or person issuing, selling, giving, or delivering the same to the person named therein or the holder thereof.
  3. The corporation, company, firm, or person issuing, selling, giving, or delivering the evidence of indebtedness in violation of subsection (a) of this section shall, moreover, be guilty of a misdemeanor and upon conviction shall be fined not less than twenty-five dollars ($25.00) and not more than one hundred dollars ($100). At the discretion of the court trying the action, the officer or agent of the corporation, company, firm, or person issuing, selling, giving, or delivering the evidence of indebtedness may be imprisoned not less than ten (10) nor more than thirty (30) days.
  4. In any suit by any holder of the scrip, token, draft, check, or other evidence of indebtedness or in any prosecution under the provisions of this section, it shall not be required of the plaintiff in the suit or the state in the prosecution to prove that the scrip, token, draft, check, or other evidence of indebtedness was sold, given, issued, or delivered by the defendant in the suit or prosecution to any laborer or employee in payment of wages of the laborer or employee.
  5. The provisions of this section do not apply to coal mines when fewer than twenty (20) men are employed under the ground.
    1. It is lawful for an employer to pay its employees by automatic deposit or by providing a debit card preloaded with the amount of wages.
    2. If wages are paid by providing a preloaded debit card under subdivision (f)(1) of this section, at least one (1) free withdrawal shall be available for the funds for each deposit of wages loaded onto the debit card.

History. Acts 1907, No. 315, §§ 1, 3, p. 749; C. & M. Dig., §§ 7128, 7130; Pope's Dig., §§ 9114, 9116; A.S.A. 1947, §§ 81-305, 81-307; Acts 2019, No. 853, § 6.

Amendments. The 2019 amendment added (f).

11-4-404. Payment by sale of goods or supplies.

  1. If any corporation, company, firm, or person shall coerce or compel or attempt to coerce or compel any employee in its employment to purchase goods or supplies in payment of wages, whether the wages are earned or not, from any corporation, company, firm, or person, the first-named corporation, company, firm, or person shall be guilty of a misdemeanor and upon conviction shall be punished as provided in § 11-4-403.
  2. If any corporation, company, firm, or person shall directly or indirectly sell to any employee in payment of wages, whether earned or not, goods and supplies at prices higher than a reasonable or current market value thereof in cash, the corporation, company, firm, or person shall be liable to the employee in a civil action in double the amount of the charges made and paid for any goods and supplies in excess of the reasonable or current value in cash thereof.
  3. The provisions of this section do not apply to coal mines when fewer than twenty (20) men are employed under the ground.

History. Acts 1907, No. 315, §§ 2, 3, p. 749; C. & M. Dig., §§ 7129, 7130; Pope's Dig., §§ 9115, 9116; A.S.A. 1947, §§ 81-306, 81-307.

11-4-405. Payment on discharge.

  1. An employer that discharges an employee is required to pay all wages due by the next regular payday.
  2. An employer that fails to make the payment required under subsection (a) of this section within seven (7) days of the next regular payday shall owe the employee double the wages due.

History. Acts 1889, No. 61, §§ 1-3, p. 76; 1903, No. 155, § 1, p. 272; 1905, No. 210, § 1, p. 537; C. & M. Dig., §§ 7125-7127; Pope's Dig., §§ 9111-9113; A.S.A. 1947, §§ 81-308 — 81-310; Acts 2019, No. 853, § 7.

Amendments. The 2019 amendment rewrote the section.

Case Notes

Constitutionality.

This section so far as it applied to natural persons was unconstitutional but as to corporations it is a valid statute. Leep v. St. Louis, Iron Mountain & S. Ry., 58 Ark. 407, 25 S.W. 75, appeal dismissed, 159 U.S. 267, 15 S. Ct. 1042, 40 L. Ed. 142 (1894) (decision prior to 1903 amendment).

Construction.

This section is a penal one and its penalty is imposed only in favor of those who come strictly within its letter. Missouri Pac. R.R. v. Clement, 207 Ark. 389, 181 S.W.2d 240 (1944); Rousseau v. Ed White Junior Shoe Co., 222 Ark. 240, 258 S.W.2d 240 (1953); Howard v. Glenn Bros. Trucking, 271 Ark. 566, 609 S.W.2d 897 (1980).

Applicability.

Subsections (a) and (b) of this section do not cover the case of an employee who voluntarily quits his employment. Caldwell v. Missouri Pac. R.R., 137 Ark. 439, 208 S.W. 790 (1919).

Subsections (a) and (b) of this section do not apply to temporary work in an emergency, for when the emergency ceases the work automatically terminates and such termination cannot be construed as a discharge. Chicago, R.I. & P.R.R. v. Russell, 173 Ark. 398, 292 S.W. 375, 51 A.L.R. 1206 (1927).

Provisions relating to penalty apply to all corporations, including railroads. Combs v. Bunn W. Robertson, Inc., 205 Ark. 20, 166 S.W.2d 665 (1942).

Individuals are not liable for the penalty under the provisions of this section. Martin v. Reynolds, 227 Ark. 1002, 302 S.W.2d 803 (1957).

The statutory language of this section does not cover one who quits voluntarily. Howard v. Glenn Bros. Trucking, 271 Ark. 566, 609 S.W.2d 897 (1980).

Burden of Proof.

Burden is on employee to prove he gave notice and requested payment as provided for in the statute, that the employer did not comply with the statute and that he is entitled to the penalty. St. Louis-San Francisco Ry. v. De Voe, 152 Ark. 38, 237 S.W. 433 (1922); Missouri Pac. R.R. v. Warren, 162 Ark. 199, 258 S.W. 130 (1924).

Under this section, a servant suing a railroad to recover wages and penalty for their nonpayment has the burden of proving that he was discharged or refused further employment, that he requested his wages to be sent to the station alleged and that they were not sent there. Missouri Pac. R.R. v. Diffie, 184 Ark. 189, 41 S.W.2d 752 (1931).

Discharge.

Subsections (a) and (b) of this section were applicable though employee was not formally discharged where he ceased working because corporation refused to pay him wages which he had earned and which were due, since employer's refusal to pay was, in legal effect, a discharge and a refusal to further employ. Combs v. Bunn W. Robertson, Inc., 205 Ark. 20, 166 S.W.2d 665 (1942).

Occasional or special employee who quit work on his own accord, and upon his return was informed the job was nearly completed and there was no need for him to go back to work, was not an employee within the meaning of this section and had not been discharged or refused further employment; consequently employee was not entitled to the protection of this section. Missouri Pac. R.R. v. Clement, 207 Ark. 389, 181 S.W.2d 240 (1944).

Evidence.

Evidence sufficient to support directed verdict for employee. Saint Louis, I.M. & S. Ry. v. McMillan, 105 Ark. 25, 150 S.W. 112 (1912).

Finding that employees had complied with this section and that the company had failed to pay their wages at the time and place required. Chicago, R.I. & P.R.R. v. Webb, 168 Ark. 955, 272 S.W. 650 (1925).

Foreman or Timekeeper.

The words “foreman or keeper of his time” as used in this section refer to the immediate foreman or timekeeper and not to any superior of the discharged employee in the same department. Bush v. Coleman, 131 Ark. 379, 199 S.W. 87 (1917).

Trial court erred in submitting to a jury the question of whether an employee's demand for unpaid commissions was made to the employee's “foreman” or “timekeeper” as required under this section because there was no evidence of strict compliance. Therefore, an award of penalties to the employee was reversed. McCourt Mfg. Corp. v. Rycroft, 102 Ark. App. 272, 284 S.W.3d 84 (2008), rehearing denied, McCourt v. Rycroft, — Ark. —, — S.W.3d —, 2008 Ark. App. LEXIS 534 (June 25, 2008), superseded, 2009 Ark. 332, 322 S.W.3d 491 (2009).

Garnishment.

Service of a writ of garnishment on the employer stops the running of the statute. St. Louis, Iron Mountain & S. Ry. v. Walsh, 86 Ark. 147, 110 S.W. 222 (1908).

Penalty.

Additional amount allowed constituted exemplary damages and not a statutory penalty and therefore justice of the peace had jurisdiction. Leep v. St. Louis, Iron Mountain & S. Ry., 58 Ark. 407, 25 S.W. 75, appeal dismissed, 159 U.S. 267, 15 S. Ct. 1042, 40 L. Ed. 142 (1894).

Where it is agreed that payment may be made at the next regular pay day, and the employee sues before that time, he cannot recover the penalty. St. Louis, I. M. & S. R. Co. v. Broomfield, 83 Ark. 288, 104 S.W. 133 (1907); Saint Louis, I.M. & S. Ry. v. Hill, 92 Ark. 484, 123 S.W. 760 (1909).

Before penalty can be recovered it must appear that there are unpaid wages due employee, after allowing all payments in money, goods, or otherwise or any other credit which the parties have validly contracted should go against the wages. Stewart & Alexander Lumber Co. v. Weaver, 83 Ark. 445, 104 S.W. 152 (1907).

Tender of wages with interest stops the penalty. Saint Louis, I.M. & S. Ry. v. Bryant, 92 Ark. 425, 122 S.W. 996 (1909).

Employee held not entitled to recover penalty. Hall v. Chicago, R. I. & P. R. Co., 96 Ark. 634, 132 S.W. 911 (1910); Largent v. Arkansas N.W.R.R., 125 Ark. 355, 188 S.W. 836 (1916).

Refusal to Pay.

Refusal of plaintiff to vacate a house on defendant's premises was not sufficient to justify refusal to pay earned wages. Grayson-McLeod Lumber Co. v. Johnson, 103 Ark. 266, 146 S.W. 141 (1912).

Request for Wages.

Where a discharged employee agreed to receive his earned wages within three days at a specific station and called therefor after three days, he was under no obligation to call for his paycheck thereafter and was entitled to recover the statutory penalty. Saint Louis S.W. Ry. v. Brown, 75 Ark. 137, 86 S.W. 994 (1905).

Where a discharged employee neither called for his pay after expiration of seven days nor notified the employer where to send his paycheck he was not entitled to recover the statutory penalty. Wisconsin & Ark. Lumber Co. v. Reaves, 82 Ark. 377, 102 S.W. 206 (1907); St. Louis, I. M. & S. R. Co. v. Bailey, 87 Ark. 132, 112 S.W. 180 (1908); Wisconsin & Ark. Lumber Co. v. Thompson, 87 Ark. 574, 113 S.W. 340 (1908); St. Louis, I. M. & S. R. Co. v. McClerkin, 88 Ark. 277, 114 S.W. 240 (1908); Lusk v. Jones, 128 Ark. 312, 194 S.W. 250 (1917).

Where a discharged employee's foreman notified him that his money would be sent to a certain station, and the employee acquiesced, this was equivalent to a request by the employee to have the money sent to the station and sufficient to entitle him to recover the statutory penalty for failure to send the money. Biggs v. St. Louis, I.M. & S. Ry., 91 Ark. 122, 120 S.W. 970 (1909).

This section is penal in nature and recovery cannot be had under it unless the discharged employee shows that he has made a distinct demand in accordance with the terms of the statute. Bush v. Coleman, 131 Ark. 379, 199 S.W. 87 (1917).

In order to collect the penalty, an employee must show either that during the seven days of grace he requested the employer to send the payment to a specified mailing address or that not having made the request he renewed his demand for payment after the expiration of the seven-day period. Rousseau v. Ed White Junior Shoe Co., 222 Ark. 240, 258 S.W.2d 240 (1953).

It matters not that an employer may have the discharged person's address somewhere in his files; in order to comply with this section the discharged person must, during the seven-day grace period, leave a specified mailing address. Rousseau v. Ed White Junior Shoe Co., 222 Ark. 240, 258 S.W.2d 240 (1953).

Where a discharged employee neither called for his pay after expiration of seven days nor notified the employer where to send his paycheck but instead entered into an agreement with the former employer to sell certain property in order to get the pay due him, he was not entitled to recover a penalty. H. & P. Mfg. Co. v. Hanson, 222 Ark. 566, 261 S.W.2d 800 (1953).

In a dispute between an employee and an employer on the issue of unpaid commissions, a trial court erred in assessing a penalty against the employer because the employee failed to show that he strictly complied with this section by demanding his unearned but unpaid wages from his employer within seven days. McCourt Mfg. Corp. v. Rycroft, 2009 Ark. 332, 322 S.W.3d 491 (2009).

Statute of Frauds.

This section does not in any manner repeal or replace the Statute of Frauds. Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985).

Cited: Magness v. Masonite Corp., 12 Ark. App. 117, 671 S.W.2d 230 (1984).

Subchapter 5 — Female Employees Generally

11-4-501 — 11-4-506. [Repealed.]

Publisher's Notes. This subchapter, concerning female employees generally, was repealed by Acts 1991, No. 332, § 1. The subchapter was derived from the following sources:

11-4-501. Acts 1915, No. 191, § 6; C. & M. Dig., § 7107; Pope's Dig., § 9093; A.S.A. 1947, § 81-612.

11-4-502. Acts 1915, No. 191, § 3; C. & M. Dig., § 7104; Pope's Dig., § 9086; Acts 1943, No. 274, § 1; 1955, No. 257, § 1; A.S.A. 1947, § 81-609.

11-4-503. Acts 1915, No. 191, § 8; C. & M. Dig., § 7109; Acts 1921, No. 140, § 1; Pope's Dig., § 9095; Acts 1943, No. 70, § 2; A.S.A. 1947, § 81-614.

11-4-504. Acts 1915, No. 191, § 5; C. & M. Dig., § 7106; Pope's Dig., § 9092; A.S.A. 1947, § 81-611.

11-4-505. Acts 1915, No. 191, § 4; C. & M. Dig., § 7105; Pope's Dig., § 9091; A.S.A. 1947, § 81-610.

11-4-506. Acts 1953, No. 217, § 1; A.S.A. 1947, § 81-622.

Subchapter 6 — Wage Discrimination

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Ark. L. Rev.

Note, County of Washington v. Gunther: A Restricted Ticket for Sex Based Wage Discrimination Claims?, 35 Ark. L. Rev. 563.

C.J.S. 51B C.J.S., Labor, § 1184.

Case Notes

Cited: King v. Consolidated Freightways Corp., 763 F. Supp. 1014 (W.D. Ark. 1991).

11-4-601. Discrimination on the basis of sex prohibited.

  1. Every employer in the state shall pay employees equal compensation for equal services, and no employer shall discriminate against any employee in the matter of wages or compensation solely on the basis of the sex of the employee.
  2. An employer who violates or fails to comply with the provisions of this section shall be guilty of a Class C misdemeanor, and each day that the violation or failure to comply continues shall be a separate offense.

History. Acts 1977, No. 282, §§ 1, 2; A.S.A. 1947, §§ 81-333, 81-334.

Publisher's Notes. This section may partially supersede §§ 11-4-60711-4-612.

Case Notes

Cited: Holt v. Deer-Mt. Judea Sch. Dist., 135 F. Supp. 3d 898 (W.D. Ark. 2015).

11-4-602 — 11-4-606. [Reserved.]

As used in §§ 11-4-60811-4-612, unless the context otherwise requires:

    1. “Employee” means an individual who performs services for an employer for wages in a lawful business, industry, trade, profession, or enterprise, and the individual's employment status has been determined by consideration of the twenty-factor test required by the Empower Independent Contractors Act of 2019, § 11-1-201 et seq.
    2. “Employee” does not include a person engaged in domestic service in the home of the employer; in agricultural service, or in temporary or seasonal employment; an employee of any social club, fraternal, charitable, educational, religious, scientific, or literary association, no part of the net earnings of which inures to the benefit of any private individual;
  1. “Employer” means a person, natural or artificial, acting in the interest of an employer directly or indirectly; and
  2. “Employment” means employment of an employee under contract of hire, expressed or implied, written or oral.

History. Acts 1955, No. 361, § 1; A.S.A. 1947, § 81-623; Acts 2019, No. 1055, § 3.

Publisher's Notes. Sections 11-4-60711-4-612 may be partially superseded by § 11-4-601.

Amendments. The 2019 amendment rewrote (1)(A); substituted “‘Employee’ does not include a person” for “However, it shall not include persons” and substituted “an employee” for “employees” in (1)(B); substituted “means a” for “shall include any” in (2); and substituted “employment of an employee” for “any employment” in (3).

Case Notes

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

Cited: Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981).

11-4-608. Penalties for violation of §§ 11-4-607 — 11-4-612.

Any employer who violates any provision of §§ 11-4-60711-4-612, or who discharges or in any other manner discriminates against any employee because the employee has made a complaint to his or her employer, the Director of the Division of Labor, or any other person, has instituted or caused to be instituted any proceedings under or related to §§ 11-4-60711-4-612, or has testified or is about to testify in any such proceeding shall be fined not more than five hundred dollars ($500) nor imprisoned more than one (1) year, or both.

History. Acts 1955, No. 361, § 6; A.S.A. 1947, § 81-628; Acts 2019, No. 910, § 5326.

Publisher's Notes. This section may be partially superseded. See publisher's note to § 11-4-607.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

Case Notes

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

Cited: Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981).

11-4-609. Administration of §§ 11-4-607 — 11-4-612.

The Director of the Division of Labor shall have the power and it shall be his or her duty to carry out and administer the provisions of §§ 11-4-60711-4-612.

History. Acts 1955, No. 361, § 3; A.S.A. 1947, § 81-625; Acts 2019, No. 910, § 5327.

Publisher's Notes. This section may be partially superseded. See publisher's note to § 11-4-607.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

Case Notes

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

Cited: Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981).

11-4-610. Wage discrimination between sexes prohibited.

  1. No employer shall discriminate in the payment of wages as between the sexes or shall pay any female in his or her employ salary or wage rates less than the rates paid to male employees for comparable work.
  2. Nothing in §§ 11-4-607 — 11-4-612 shall prohibit a variation in rates of pay based upon a difference in seniority, experience, training, skill, ability, differences in duties and services performed, differences in the shift or time of the day worked, or any other reasonable differentiation except difference in sex.

History. Acts 1955, No. 361, § 2; A.S.A. 1947, § 81-624.

Publisher's Notes. This section may be partially superseded. See publisher's note to § 11-4-607.

Case Notes

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

Cited: Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981); Holt v. Deer-Mt. Judea Sch. Dist., 135 F. Supp. 3d 898 (W.D. Ark. 2015).

11-4-611. Action to collect unpaid wages.

  1. An employer who violates the provisions of § 11-4-610 shall be liable to the employee or employees affected in the amount of their unpaid wages.
    1. Action to recover the wages may be maintained in any court of competent jurisdiction by any one (1) or more employees.
    2. Any agreement between the employer and the employee to work for less than the wage to which the employee is entitled under §§ 11-4-607 — 11-4-612 shall be no defense to the action.
    3. In addition to any wages recovered, the court in the action shall allow an additional equal amount as liquidated damages plus a reasonable attorney's fee and court costs.
    4. At the request of any employee paid less than the wage to which he or she is entitled under §§ 11-4-607 — 11-4-612, the Director of the Division of Labor may take an assignment of the wage claim in trust for the employee and shall bring any legal action necessary to collect the claim. The director shall not be required to pay any court costs in connection with the action.
  2. Any action to recover wages and liquidated damages based on violation of § 11-4-610 must be commenced within two (2) years of the accrual thereof and not afterwards.

History. Acts 1955, No. 361, §§ 4, 7; A.S.A. 1947, §§ 81-626, 81-629; Acts 2019, No. 910, § 5328.

Publisher's Notes. This section may be partially superseded. See publisher's note to § 11-4-607.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the first sentence of (b)(4).

Case Notes

Evidence.

Evidence that male employee received higher wages than female employee during the same period was properly admitted to determine wages due plaintiff under this section, but plaintiff was only entitled to wages for the period for which such proof provided. Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981).

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

11-4-612. Employer to keep records.

  1. Every employer subject to §§ 11-4-607 — 11-4-612 shall keep and maintain records of the salaries and wage rates, job classifications, and other terms and conditions of employment of the persons employed by him or her and the records shall be preserved for a period of three (3) years.
  2. The records shall also be made available to the parties and to the court wherein an action to recover unpaid wages under this subchapter is pending.

History. Acts 1955, No. 361, § 5; A.S.A. 1947, § 81-627.

Publisher's Notes. This section may be partially superseded. See publisher's note to § 11-4-607.

Case Notes

Voluntary Termination.

There is nothing in §§ 11-4-607—11-4-612 which even remotely suggests that an employee may voluntarily quit her job because of an isolated incident which might arguably be in violation of one of those sections and thereby preserve unemployment insurance benefits. Graham v. Daniels, 269 Ark. 717, 601 S.W.2d 225 (Ct. App. 1980).

Cited: Meredith v. Dillard Dep't Stores, Inc., 272 Ark. 498, 616 S.W.2d 471 (1981).

11-4-607. Definitions for §§ 11-4-608 — 11-4-612.

Chapter 5 Working Conditions Generally

Research References

ALR.

Employer's tort liability to worker for concealing workplace hazard or nature or extent of injury. 9 A.L.R.4th 778.

Labor union's liability for injury or death allegedly resulting from unsafe working conditions. 14 A.L.R.4th 1161.

Liability of employer with regard to inherently dangerous work for injuries to employees of independent contractor. 34 A.L.R.4th 914.

Discharge of employee for complaining about wages, hours, or working conditions. 35 A.L.R.4th 1031.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 A.L.R.4th 13.

Employer's liability for injury to babysitter in home or similar premises. 29 A.L.R.4th 304.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person. 40 A.L.R.5th 1.

Sexual harassment on the job as violation of state civil rights law. 18 A.L.R.4th 328.

Am. Jur. 27 Am. Jur. 2d, Emp. Relationship, § 293 et seq.

C.J.S. 30 C.J.S., Emp. Liability, § 52 et seq.

51 C.J.S., Labor, § 11.

Subchapter 1 — General Provisions

Effective Dates. Acts 1913, No. 235, § 3: approved Mar. 29, 1913. Emergency declared.

Acts 1987, No. 489, § 6: became law without Governor's signature, Mar. 31, 1987. Emergency clause provided: “It has been found and it is hereby declared by the General Assembly of the State of Arkansas that citizens of Arkansas are being denied or restricted in their ability to obtain immediate and locally available pharmacy services and that this act is immediately necessary for the protection and preservation of the health, safety, and welfare of the people. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

11-5-101. Suitable temperature, humidity, and air space required.

  1. In every factory, mill, workshop, mercantile establishment, laundry, or other establishment, adequate measures shall be taken for securing and maintaining a reasonable, and as far as possible, an equable temperature consistent with the reasonable requirements of the manufacturing process.
  2. No unnecessary humidity which would jeopardize the health of employees shall be permitted.
  3. In every room, apartment, or building used as a factory, mill, workshop, mercantile establishment, laundry, or other place of employment, sufficient air space shall be provided for every employee which in the judgment of the Director of the Division of Labor or of his or her deputies and inspectors is sufficient for the employees' health and welfare.

History. Acts 1937, No. 323, § 1; Pope's Dig., § 6469; A.S.A. 1947, § 81-401; Acts 2019, No. 910, § 5329.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (c).

11-5-102. Removal of gas, effluvia, and dust required.

  1. All factories, mills, workshops, mercantile establishments, laundries, and other establishments shall be kept free from gas or effluvia arising from any sewer, drain, privy, or other nuisance on the premises.
  2. All poisonous or noxious gases arising from any process and all dust which is injurious to the health of persons employed which is created in the process of manufacturing within the above-named establishments shall be removed as far as practicable by ventilators, exhaust fans, or other adequate devices.

History. Acts 1937, No. 323, § 2; Pope's Dig., § 6470; A.S.A. 1947, § 81-402.

Case Notes

Assumption of Risk.

Under § 11-8-105, employee does not assume the risk of contracting occupational disease if the disease results from the failure of his employer to comply with the provisions of any statute enacted for his safety. Barksdale v. Silica Prods. Co., 200 Ark. 32, 137 S.W.2d 901 (1940).

11-5-103. Cleaning required.

  1. All decomposed, fetid, or putrescent matter and all refuse, waste, and sweepings of any factory, mill, workshop, mercantile establishment, laundry, or other establishment shall be removed at least once each day and be disposed of in such manner as not to cause a nuisance.
  2. All cleaning, sweeping, and dusting shall be done as far as possible outside of working hours, but if done during working hours, shall be done in such a manner as to avoid, as far as possible, the raising of dust and noxious odors.

History. Acts 1937, No. 323, § 3; Pope's Dig., § 6471; A.S.A. 1947, § 81-403.

11-5-104. Wet floors — Certain precautions required.

  1. In all establishments where any process is carried on which makes the floors wet, the floors shall be constructed and maintained with due regard for the health of the employees.
  2. Gratings or dry standing room shall be provided wherever practicable at points where employees are regularly stationed.
  3. Adequate means shall be provided for drainage and for the prevention of leakage or seepage to lower floors.

History. Acts 1937, No. 323, § 3; Pope's Dig., § 6471; A.S.A. 1947, § 81-403.

11-5-105. Safe doors, stairways, and elevators required.

  1. All doors used by employees as entrances to or exits from factories, mills, workshops, mercantile establishments, laundries, or other establishments of a height of two (2) stories or over shall open outward and shall be so constructed as to be easily and immediately opened from within in case of fire or other emergencies.
  2. Proper and substantial handrails shall be provided on all stairways.
  3. Lights shall be kept burning at all main stairs, stair landings, and elevator shafts in the absence of sufficient natural light.
  4. The provisions of this section shall not apply to any mercantile establishments having fewer than three (3) female employees.

History. Acts 1937, No. 323, § 4; Pope's Dig., § 6472; A.S.A. 1947, § 81-404.

11-5-106. [Repealed.]

Publisher's Notes. This section, concerning the prohibition of workplace conduct calculated to injuriously affect the morals of the female employees, was repealed by Acts 2003, No. 289, § 1. The section was derived from Acts 1937, No. 323, § 5; Pope's Dig., § 6473; A.S.A. 1947, § 81-405.

11-5-107. Inspection of working place — Findings.

  1. The Director of the Division of Labor or any of his or her deputies or inspectors shall have the right to enter any factory, mill, workshop, mercantile establishment, laundry, or other establishment where three (3) or more persons are employed for the purpose of making inspections and enforcing the provisions of §§ 11-5-101 — 11-5-111.
  2. They are empowered upon finding any violation of §§ 11-5-101 — 11-5-111 by reason of unsanitary conditions which will endanger the health of the employees therein employed, by reason of neglect to remove and prevent fumes and gases or odor injurious to employees, by reason of the failure or refusal to comply with any requirement of §§ 11-5-101 — 11-5-111, or by reason of the inadequacy or insufficiency of any plan, method, practice, or device employed in assumed compliance with any of the requirements of §§ 11-5-101 — 11-5-111 to pass upon and to make a written finding as to the failure or refusal to comply with any requirement of §§ 11-5-101 — 11-5-111 or as to adequacy or sufficiency of any practice, plan, or method used in or about any place mentioned in §§ 11-5-101 — 11-5-111 in supposed compliance with any of the requirements of §§ 11-5-101 — 11-5-111.

History. Acts 1937, No. 323, § 6; Pope's Dig., § 6474; A.S.A. 1947, § 81-406; Acts 2019, No. 910, § 5330.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-5-108. Order to correct conditions — Issuance.

  1. The Director of the Division of Labor or any of his or her deputies or inspectors may issue a written order to the owner, manager, superintendent, or other person in control or management of the place or establishment for the correction of any condition caused or permitted in or about the place or establishment in violation of any of the requirements of §§ 11-5-101 — 11-5-111, or of any condition, practice, plan, or method used therein or thereabouts in supposed compliance with any requirement of §§ 11-5-101 — 11-5-111 but which are found to be inadequate or insufficient, in any respect, to comply therewith, and shall state in the order how the conditions, practices, plans, or methods, in any case, shall be corrected and the time within which they shall be corrected, a reasonable time being given in the order therefor.
  2. One (1) copy of the order shall be delivered to the owner, manager, superintendent, or other person in control or management of the place or establishment, and one (1) copy shall be filed in the office of the Division of Labor.

History. Acts 1937, No. 323, § 6; Pope's Dig., § 6474; A.S.A. 1947, § 81-406; Acts 2019, No. 910, § 5331.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a); and substituted “Division of Labor” for “Department of Labor” in (b).

11-5-109. Order to correct conditions — Conclusiveness — Action to set aside.

  1. The findings and orders shall be prima facie valid, reasonable, and just and shall be conclusive unless attacked and set aside in the manner provided in subsections (b) and (c) of this section.
    1. The owner or owners, manager, superintendent, or other person in control or management of any place or establishment covered by this chapter, and directly affected by any finding or order provided for in §§ 11-5-107 and 11-5-108, may, within fifteen (15) days from the date of the delivery to him, her, or them of a copy of the order as provided for in §§ 11-5-107 and 11-5-108, file a petition setting forth the particular cause of objection to the order and findings in a court of competent jurisdiction against the Director of the Division of Labor.
    2. The action shall have precedence over all other causes of a different nature and shall be tried and determined as other civil causes in the court.
    3. If the court is in session at the time the cause of action arises, the suit may be filed during the term and stand ready for trial after ten (10) days' notice.
    1. Either party may appeal but shall not have the right to sue out a writ of error from the trial court.
    2. The appeal shall at once be returnable to the proper appellate court at either of its terms and shall have precedence in the appellate court over other causes of a different nature.
  2. In any trial under this section, the burden shall be upon the plaintiff to show that the findings and order complained of are illegal, unreasonable, or unjust to the plaintiff.

History. Acts 1937, No. 323, §§ 6, 7; Pope's Dig., §§ 6474, 6475; A.S.A. 1947, §§ 81-406, 81-407; Acts 2019, No. 910, § 5332.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b)(1).

11-5-110. Order to correct conditions — Penalties for noncompliance.

  1. Upon the failure or refusal of the owner, manager, superintendent, or other person in control or management of a place or establishment, to comply with an order issued pursuant to § 11-5-108 within the time therein specified, unless it has been attacked and suspended or set aside as provided for in § 11-5-109, the Director of the Division of Labor or his or her deputy or inspectors shall have full authority and power to close the place or establishment, or any part of it that may be in an unsanitary or dangerous condition or contain immoral influences in violation of any requirement of §§ 11-5-101 — 11-5-110 or order, until such time as the condition, practice, or method is corrected.
  2. Any person in control or management of any establishment included in § 11-5-109 who shall fail or refuse to comply with any written order issued to the person by the director or any of his or her deputies or inspectors, for the correction of any condition caused or permitted therein which endangers the health of the employees therein or which does not comply with the law governing those establishments, shall be punished as provided in § 11-5-111.

History. Acts 1937, No. 323, §§ 6, 8; Pope's Dig., §§ 6474, 6476; A.S.A. 1947, §§ 81-406, 81-408; Acts 2019, No. 910, § 5333.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-5-111. Penalty for violation of §§ 11-5-101 — 11-5-110.

  1. Any employer violating the provisions of §§ 11-5-101 — 11-5-110 shall be deemed guilty of a misdemeanor.
    1. Upon conviction, the employer shall be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100).
    2. Each day's violation shall constitute a separate offense and shall be punished as such.

History. Acts 1937, No. 323, § 9; Pope's Dig., § 6477; A.S.A. 1947, § 81-409.

11-5-112. Separate facilities for males and females required.

  1. There shall be provided in every factory, manufacturing establishment, workshop, or other place where six (6) or more males and females are employed separate toilets and washrooms for males and females.
    1. The Director of the Division of Labor shall enforce the provisions of this section and shall give notice in writing to employers violating it.
    2. Upon failure to comply with the provisions of this section after thirty (30) days from the notice, the employers shall be liable to penalties provided in subsection (c) of this section.
    1. Any firm, person, or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100).
    2. Each day shall constitute a separate offense.
  2. This section shall not repeal any laws now in force but shall be cumulative thereto.

History. Acts 1919, No. 265, §§ 1-4; C. & M. Dig., §§ 7116-7118; Pope's Dig., §§ 9102-9104; A.S.A. 1947, §§ 81-410 — 81-413; Acts 1997, No. 300, § 1; 2019, No. 910, § 5334.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b)(1).

11-5-113. [Repealed.]

Publisher's Notes. This section, concerning seats to be furnished for females, was repealed by Acts 1997, No. 300, § 2. The section was derived from Acts 1913, No. 235, §§ 1, 2; C. & M. Dig., §§ 7100, 7101; Pope's Dig., §§ 9082, 9083; A.S.A. 1947, §§ 81-620, 81-621.

11-5-114. Requiring use of out-of-state mail-order pharmacy.

  1. It shall be unlawful for any employer providing pharmacy services, including prescription drugs, to employees as a part of a health care program to require the employee to obtain drugs from an out-of-state mail-order pharmacy as a condition of obtaining the employer's payment for the prescription drugs or to impose upon an employee not utilizing an out-of-state mail-order pharmacy designated by the employer a copayment fee or other condition not imposed upon employees utilizing the designated out-of-state mail-order pharmacy.
    1. This section shall not apply to any employer who:
      1. Offers, as a part of a health care program, health insurance coverage to employees that provides for payment of an equal portion of the cost to the employee for prescription drugs regardless of the supplier if the health insurance plan allows the employee freedom of choice in determining where the drugs are purchased; or
      2. Had in force effective January 1, 1987, a mail-order prescription drug plan for employees.
    2. The provisions of this section shall not be applicable to health care programs in existence on March 30, 1987.
    1. Any person or entity violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
    2. Each violation shall constitute a separate offense.

History. Acts 1987, No. 489, §§ 1-4.

11-5-115. Prevention of workplace violence.

  1. If an employer or an employer's employee or invitee has:
    1. Suffered unlawful violence by an individual as defined by § 5-13-310, terroristic act; § 5-14-103, rape; §§ 5-13-201 — 5-13-203, battery; §§ 5-26-301 — 5-26-309, domestic battering and assault on a family or household member; or a crime of violence as defined by § 5-73-202(1);
    2. Received a threat of violence by an individual which can reasonably be construed as a threat which may be carried out at the work site as defined by § 5-13-301, terroristic threatening; § 5-38-202, threatening a catastrophe; §§ 5-13-204 — 5-13-207, assault; or §§ 5-26-304 — 5-26-306, domestic battering; or
    3. Been stalked or harassed at the work site as defined by § 5-71-213, loitering; § 5-39-203, criminal trespass; § 5-71-208, harassment; or § 5-71-229, stalking, the employer may, in addition to, or instead of, filing criminal charges against the individual, seek a temporary restraining order, a preliminary injunction, or an injunction under Arkansas Rule of Civil Procedure 65 prohibiting further unlawful acts by that individual at the work site, which shall include any place at which work is being performed on behalf of the employer.
    1. Proof by a preponderance of the evidence of any action described in subsection (a) of this section shall constitute irreparable harm or damage to the employer or employer's employee or invitee.
    2. Upon the granting of any restraining order, preliminary injunction, or injunction, the court may, among other appropriate orders:
      1. Order the defendant not to visit, assault, molest, or otherwise interfere with the employer or the employer's operations or the employer's employee or invitee at the employer's work site;
      2. Order the defendant to cease stalking the employer's employee or invitee at the employer's work site;
      3. Order the defendant to cease harassment of the employer or the employer's employee or invitee at the employer's work site;
      4. Order the defendant not to abuse or injure the employer, including the employer's property, or the employer's employee or invitee at the employer's work site;
      5. Order the defendant not to telephone the employer or the employer's employee or invitee at the employer's work site; or
      6. Such other necessary and appropriate relief as is deemed appropriate in the discretion of the court.
  2. When necessary to protect the employer or the employer's employee, invitee, or property, and when authorized by the court, temporary restraining orders, preliminary injunctions, and injunctions granted under this section may be served upon the defendant by a peace officer, sheriff, constable, police officer, other law enforcement officer whose duty it is to preserve the peace, or by any other person authorized by law to serve process, with appropriate orders to the officials to enforce the court's order.
  3. Unless specifically modified or terminated by the issuing judge, all orders and injunctions issued under this section shall have statewide validity and may be enforced by the issuing court for any violation anywhere in the state and by any court of competent jurisdiction within the state for violations which may occur within that court's jurisdiction.
  4. All orders and injuctions issued under this section shall contain language directing appropriate law enforcement agencies to enforce the court's orders.
  5. Unless lack of good faith is shown by clear and convincing evidence, an employer and an employer's agents who act in accord with this section shall be presumed to be acting in good faith and are immune from civil liability for actions taken under this section.
  6. Any employer, or its employee or invitee, which does not utilize the procedures of this section shall not be liable for negligence, nor shall evidence of the same be admissible as evidence of negligence.
    1. This section is not applicable in circumstances where an employee or the employee's representative is engaged in union organizing, union activity, a labor dispute, or any activity or action arguably protected by the National Labor Relations Act.
    2. Nothing in this section is intended to change the act's preemptive regulation of legally protected activities nor to change the right of the State of Arkansas and its courts to regulate activities not protected by the act.

History. Acts 2001, No. 1084, § 1.

U.S. Code. The National Labor Relations Act, referred to in (h)(1), is codified as 29 U.S.C.S. § 151 et seq.

Research References

ALR.

Liability for Workplace Bullying That Does Not Involve Class-Based Discrimination, 27 A.L.R.7th Art. 3 (2018).

11-5-116. Break time for expressing breast milk.

    1. An employer shall provide reasonable unpaid break time each day to an employee who needs to express breast milk for her child in order to maintain milk supply and comfort.
    2. To the extent possible, the break time required under subdivision (a)(1) of this section shall run concurrently with any paid or unpaid break time already provided to the employee.
    1. An employer shall make a reasonable effort to provide a private, secure, and sanitary room or other location in close proximity to the work area, other than a toilet stall, where an employee can express her breast milk.
    2. The room or location provided under subdivision (b)(1) of this section may include the employee's normal work space if the employee's normal work space meets the requirements of this section.
  1. This section does not require an employer to provide break time if to do so would create an undue hardship on the operations of the employer.
  2. The employee shall make reasonable efforts to minimize disruption to the employer's operations.

History. Acts 2009, No. 621, § 1.

Subchapter 2 — Industrial Health Service Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

11-5-201 — 11-5-208. [Repealed.]

A.C.R.C. Notes. The repeal of § 11-5-205 by Acts 2019, No. 910, § 4854, superseded the amendment of § 11-5-205 by Acts 2019, No. 315, § 769. The amendment by Act 315 deleted “and regulations” following “rules”.

Publisher's Notes. This subchapter, concerning the Industrial Health Service Act, was repealed by Acts 2019, No. 910, § 4854, effective July 1, 2019. The subchapter was derived from the following sources:

11-5-201. Acts 1947, No. 350, § 1; A.S.A. 1947, § 81-414.

11-5-202. Acts 1947, No. 350, § 1; A.S.A. 1947, § 81-414.

11-5-203. Acts 1947, No. 350, § 8; A.S.A. 1947, § 81-421.

11-5-204. Acts 1947, No. 350, §§ 2, 3; A.S.A. 1947, §§ 81-415, 81-416.

11-5-205. Acts 1947, No. 350, § 4; A.S.A. 1947, § 81-417; Acts 2019, No. 315, § 769.

11-5-206. Acts 1947, No. 350, § 5; A.S.A. 1947, § 81-418.

11-5-207. Acts 1947, No. 350, § 7; A.S.A. 1947, § 81-420.

11-5-208. Acts 1947, No. 350, § 6; A.S.A. 1947, § 81-419.

Subchapter 3 — Work Near High Voltage Lines

Effective Dates. Acts 1963, No. 148, § 11: Mar. 4, 1963. Emergency clause provided: “It has been found and is declared by the General Assembly that existing laws presenting safety precautions to be taken in the proximity of overhead high voltage electrical lines for the prevention of accidents are inadequate; that this situation results in unnecessary danger to persons and property; and that enactment of this measure will provide the needed remedy. An emergency is therefore declared to exist, and this act, being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from the date of its approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Liability for injury or death resulting when object is manually brought into contact with, or close proximity to, electric line. 33 A.L.R.4th 809.

Ark. L. Rev.

Torts-Negligence: Effect of Violation of Safety Statutes on the Admissibility of Evidence of Custom and Industry Standards, 28 Ark. L. Rev. 397.

U. Ark. Little Rock L.J.

Karber, Survey of Arkansas Law: Workers' Compensation, 2 U. Ark. Little Rock L.J. 294.

Case Notes

Cited: Holiday Inns of Am., Inc. v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973); Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978).

11-5-301. Purpose.

  1. This subchapter provides for the minimum precautions to be taken during any excavation, demolition, transportation of equipment, construction, repair, or operation in the proximity of energized overhead electrical lines.
    1. The purposes of this subchapter are to provide for the protection of persons engaged in work of any nature in the vicinity of energized overhead electrical lines, to define the conditions under which work may be carried on safely, the procedures and means by which these conditions may be created, to provide penalties, and to provide remedies to those affected by violations of this subchapter.
    2. This subchapter shall not apply to the direct employees of the State Highway Commission or the Arkansas Department of Transportation.

History. Acts 1963, No. 148, § 1; A.S.A. 1947, § 81-1401; Acts 1989, No. 752, § 1; 2017, No. 707, § 13.

Amendments. The 2017 amendment, in (b)(2), substituted “This” for “The provisions of this”, and substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); Intents, Inc. v. Southwestern Elec. Power Co., 2011 Ark. 32, 376 S.W.3d 435 (2011).

11-5-302. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Authorized person” means:
    1. Employees of an electrical utility company with respect to the electrical system of such a company, and the employees of a transportation system with respect to the electrical circuits of the system;
    2. Employees of communication utilities, state, county, or municipal agencies having authorized circuit construction on the poles or structures of an electric utility company, transportation system, or communication system;
    3. Employees of an industrial plant with respect to the electrical system of the plant;
    4. Employees of a municipality with respect to the electrical system of the municipality; and
    5. Employees of any electrical or communications contractor with respect to work under his or her supervision, having authorized construction work on the poles or structures of an electrical utility company, transportation system, or communication system;
  2. “De-energizing” means removing the voltage from electrical conductors and grounding;
  3. “Energized overhead electrical lines” means electrical lines which are energized at a potential of four hundred forty (440) volts or more, as measured between the conductor and the ground;
  4. “Mechanical barrier” means a temporary device for separating and preventing contact between material or equipment and energized overhead electrical lines such as:
    1. Insulating barriers; or
    2. Nonconductive enclosures around conductors;
  5. “Shall” is to be understood as mandatory;
  6. “Should” is to be understood as advisory;
  7. “Temporary relocation” means:
    1. Removing electrical conductors from poles;
    2. Elevating electrical conductors; or
    3. Rerouting electrical conductors;
  8. “Warning sign” means a weather-resistant sign of not less than five inches by seven inches (5" x 7") with a yellow background and black lettering reading as follows:

“WARNING — Unlawful to operate this equipment within ten feet (10') of energized overhead electrical lines.”

History. Acts 1963, No. 148, § 2; 1979, No. 716, § 1; A.S.A. 1947, § 81-1402; Acts 1989, No. 752, § 2.

Case Notes

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

11-5-303. Application of National Electrical Safety Code.

The provisions of the National Electrical Safety Code, as adopted by the State of Arkansas, shall apply in the interpretation of this subchapter.

History. Acts 1963, No. 148, § 4; A.S.A. 1947, § 81-1404; Acts 1989, No. 752, § 3.

11-5-304. Exceptions.

This subchapter does not apply to the construction, reconstruction, operation, and maintenance of energized overhead electrical lines and their supporting structures and associated equipment by an authorized electrical person nor to any authorized person engaged in the construction, reconstruction, operation, and maintenance of overhead electrical or communications circuits or conductors and their supporting and associated equipment of rail transportation systems, electrical transmission or distribution systems, or communications systems.

History. Acts 1963, No. 148, § 3; A.S.A. 1947, § 81-1403; Acts 1989, No. 752, § 4.

Case Notes

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

11-5-305. Penalty for violations.

  1. Every person, firm, corporation, or association who violates any of the provisions of this subchapter shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); and in addition thereof, if the violation results in physical or electrical contact with any energized overhead electrical line or conductor, and the violation is a proximate cause of any damage or injury to person or property, then the person, firm, corporation, or association violating the provisions of this subchapter shall be liable to the owner or operator of the electrical line or conductor for all damage to the facilities and for all loss, cost, and damages, including attorney's fees, incurred by way of property damage or personal injury by the owner or operator as a result of any such accidental contact.
  2. The provisions of this section shall not apply to public utilities engaged in business in the State of Arkansas, nor their direct employees, nor to persons owning, leasing, or otherwise possessing a legal interest in the land upon which the energized overhead electrical line is located.

History. Acts 1963, No. 148, § 10; A.S.A. 1947, § 81-1410; Acts 1989, No. 752, § 10.

Case Notes

Priority Over Worker's Compensation Act.

This section of the Work Near High Voltage Lines Act (Act) had priority over the exclusive remedy provisions of Worker's Compensation Act. Thus, an employer had to indemnify a utility for attorney's fees it incurred in defending personal injury actions as a result of the employer's failure to comply with the notification provisions of the Act. Intents, Inc. v. Southwestern Elec. Power Co., 2011 Ark. 32, 376 S.W.3d 435 (2011).

Cited: Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978).

11-5-306. Use of alternative devices or methods.

Where specific devices or methods are mentioned in this subchapter, other devices or methods which will secure equally good results may be used, subject to the approval of the enforcing authority.

History. Acts 1963, No. 148, § 3; A.S.A. 1947, § 81-1403; Acts 1989, No. 752, § 5.

Case Notes

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

11-5-307. Notification.

    1. When any person, firm, or corporation desires to temporarily carry on any function, activity, work, or operation in closer proximity to any energized overhead electrical line or conductor than permitted by this subchapter, the person or persons responsible for the work to be done shall promptly notify the Director of the Division of Labor and the operator or owner of the electrical lines in writing of the work to be performed and make appropriate arrangements with the operator of the electrical lines before proceeding with any work which would impair the clearances required by this subchapter.
    2. The written notice shall be given to the owner or operator of the electrical lines by submitting notification to the manager of the nearest local office of the operator or owner of the electrical lines with a copy forwarded to the director.
    1. The work shall be performed only after satisfactory mutual arrangements have been negotiated between the owner and operator of the electrical lines and the person or persons responsible for the work to be done.
    2. The owner or operator of the electrical lines shall commence work on the mutual arrangements as provided herein within three (3) working days of the mutual arrangement. Once initiated, the clearance work will continue without unreasonable interruption to complete.

History. Acts 1963, No. 148, § 9; 1979, No. 716, § 4; A.S.A. 1947, § 81-1409; Acts 1989, No. 752, § 8; 2019, No. 910, § 5335.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a)(1).

Case Notes

Failure to Provide Notice.

Summary judgment was properly awarded to electric company in plaintiff's personal injury action, which was brought after he was injured when an energized electrical line arced into his back, as it was clear that neither plaintiff nor his employer gave the requisite statutory notice to the electric company that work would be conducted near its power lines. Thornton v. Ark. Valley Elec. Coop. Corp., 95 Ark. App. 151, 234 S.W.3d 915 (2006).

Notification under this section is not a prerequisite to a utility's legal duty of care. Koch v. Southwestern Elec. Power Co., 544 F.3d 906 (8th Cir. 2008).

Where two men setting up a tent at a festival were electrocuted when an aluminum tent pole from a tent they were carrying came in contact with a power line, the lack of any formal notification regarding the festival sent to the utility company pursuant to this section did not, in itself, negate any common law duty that the company had towards the decedents. Koch v. Southwestern Elec. Power Co., 544 F.3d 906 (8th Cir. 2008).

Cited: Clark v. Transcon. Ins. Co., 359 Ark. 340, 197 S.W.3d 449 (2004); Intents, Inc. v. Southwestern Elec. Power Co., 2011 Ark. 32, 376 S.W.3d 435 (2011).

11-5-308. Prohibited acts.

  1. No person, firm, corporation, or association shall, individually or through an agent or employee, and no person as an agent or employee of any person, firm, corporation, or association, shall perform, require, or permit any agent or employee to perform any function or activity upon any land, building, structure, highway, or other premises when it could be reasonably expected, during the performance of the activity, for any person or employee engaged in performing work connected with or related to the function or activity to move or to be placed in a position within ten feet (10') of any energized overhead electrical line or conductor, or when it could be reasonably expected for any part of any tool, equipment, machinery, or material to be used by any such person or employee to be brought within ten feet (10') of any such overhead line or conductor through any lateral, vertical, or swinging motion during the performance of that function or activity, unless and until danger from accidental contact with said overhead lines has been effectively guarded against in the manner hereinafter prescribed.
  2. No person, firm, corporation, or association shall, individually or through an agent or employee, and no person as an agent or employee of any person, firm, corporation, or association, shall store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies, materials, or other apparatus, house, other building, or any part thereof, within ten feet (10') of any energized overhead electrical line unless and until danger from accidental contact with the overhead line has been effectively guarded against in the manner hereinafter prescribed.
    1. The commission of any act enumerated in subsection (a) or (b) of this section shall be prohibited except where energized overhead electrical lines have been effectively guarded against danger from accidental contact, by either:
      1. The erection of mechanical or insulating barriers to prevent physical contact with energized overhead electrical lines; or
      2. De-energizing the overhead electrical lines and grounding.
    2. Only in the case of either of such exceptions may the ten foot (10') clearance required be reduced. The required ten foot (10') clearance shall not be provided by movement of the lines through strains impressed by attachments or otherwise, upon the structures supporting the overhead lines, nor upon any equipment, fixtures, or attachments thereon.
    3. If subdivisions (c)(1)(A) and (B) of this section are not practicable in the opinion of the owner or operator of the electrical lines and it is necessary to temporarily relocate the overhead electrical lines, mutually agreeable arrangements shall be made with the owner or operator of the overhead electrical lines for the temporary relocation.
    4. In addition to the requirements of subdivisions (c)(1)(A) and (B) of this section, there shall be installed an insulated cage-type guard or protective device, approved by the Director of the Division of Labor, about the boom or arm of all equipment, except backhoes or dippers. Where the equipment includes a lifting hook device also approved by the director, all lifting lines shall be equipped with insulator links on the lift hook connection.
    5. All mechanical barriers and all insulated protective devices and links referred to in this section shall be of such character and construction as are suited to the work operations and adequate for the electrical conditions to be encountered.
    6. All mechanical barriers and all insulated protective devices and links shall be maintained in such functioning condition as to meet periodic inspection.

History. Acts 1963, No. 148, §§ 5, 6; 1979, No. 716, § 2; A.S.A. 1947, §§ 81-1405, 81-1406; Acts 1989, No. 752, §§ 6, 7; 2019, No. 910, § 5336.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the first sentence of (c)(4).

Case Notes

Evidence.

There was substantial evidence in workers, compensation case to warrant award of penalty under § 11-9-503 for employer's violation of this section. Holiday Inns of Am., Inc. v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973).

Where the employer provided warning signs, but it made no other attempts to comply with this section, and in light of the location of the auger at the time of the accident, it was clearly and forseeably possible that the auger could come within 10 feet of the high-voltage lines, the Worker's Compensation Commission's decision that the employer failed to comply with this section was supported by substantial evidence. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

Cited: Heslep v. Forrest & Cotton, Inc., 247 Ark. 1066, 449 S.W.2d 181 (1970); Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978); Moody Equip. & Supply Co. v. Union Nat'l Bank, 273 Ark. 319, 619 S.W.2d 637 (1981).

11-5-309. Warning signs.

  1. The owner, agent, or employer responsible for the operation of equipment shall post and maintain in plain view of the operator on each crane, derrick, power shovel, drilling rig, hay loader, hay stacker, pile driver, or similar apparatus, any part of which is capable of vertical, lateral, or swinging motion, an approved weather-resistant warning sign legible at twelve feet (12') reading:
  2. Warning signs shall be placed:
    1. Within the equipment readily visible to operators of cranes and other equipment when at the controls of such equipment; and
    2. On the outside of equipment in such number and locations as to be readily visible to mechanics or other persons engaged in the work operations.
  3. Warning signs should not be less than five inches (5") in height and not less than seven inches (7") in width.

“WARNING — Unlawful to operate this equipment within ten feet (10') of energized overhead electrical lines.”

History. Acts 1963, No. 148, §§ 7, 8; 1979, No. 716, § 3; A.S.A. 1947, §§ 81-1407, 81-1408; Acts 1989, No. 752, § 9.

Case Notes

Evidence.

The statutory minimum requirement for warning signs precludes admissibility of evidence of custom and usage. Smith v. Aaron, 256 Ark. 414, 508 S.W.2d 320 (1974).

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

Subchapter 4 — Genetic Information in the Workplace

Cross References. Genetic Research Studies Nondisclosure Act, §§ 20-35-101 et seq.

11-5-401. Title.

This subchapter shall be known and may be cited as the “Genetic Information in the Workplace Act”.

History. Acts 2001, No. 1407, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Labor Law, 24 U. Ark. Little Rock L. Rev. 493.

11-5-402. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “DNA” means deoxyribonucleic acid;
  2. “Employer” means employer as the term is defined in Section 3(d) of the Fair Labor Standards Act of 1938;
    1. “Genetic information” means information derived from the results of a genetic test.
    2. “Genetic information” shall not include:
      1. Family history;
      2. Results of a routine physical examination or test;
      3. Results of a chemical, blood, or urine analysis;
      4. Results of a test to determine drug use;
      5. Results of a test for the presence of the human immunodeficiency virus; or
      6. Results of any other test commonly accepted in clinical practice at the time it is ordered by the insurer;
    1. “Genetic test” means a laboratory test of the DNA, RNA, or chromosomes of an individual for the purpose of identifying the presence or absence of inherited alterations in the DNA, RNA, or chromosomes that cause a predisposition for a clinically recognized disease or disorder.
    2. “Genetic test” shall not include:
      1. A routine physical examination or a routine test performed as a part of a physical examination;
      2. A chemical, blood, or urine analysis;
      3. A test to determine drug use;
      4. A test for the presence of the human immunodeficiency virus; or
      5. Any other test commonly accepted in clinical practice at the time it is ordered by the insurer; and
  3. “RNA” means ribonucleic acid.

History. Acts 2001, No. 1407, § 1.

U.S. Code. The Fair Labor Standards Act of 1938, referred to in this section, is codified as 29 U.S.C. § 203(d).

11-5-403. Prohibition of employer's use of genetic test or information.

  1. An employer shall not seek to obtain or use a genetic test or genetic information of the employee or the prospective employee for the purposes of distinguishing between or discriminating against or restricting any right or benefit otherwise due or available to an employee or prospective employee.
  2. An employer shall not require a genetic test of or require genetic information from the employee or prospective employee for the purposes of distinguishing between or discriminating against or restricting any right or benefit otherwise due or available to an employee or prospective employee.

History. Acts 2001, No. 1407, § 1.

Research References

ALR.

Construction and Application of Statutes Prohibiting Genetic Discrimination in Workplace. 6 A.L.R.7th Art. 2 (2015).

11-5-404. Penalty for violation of § 11-5-403.

Any employer who violates the prohibitions of § 11-5-403 shall be guilty of a misdemeanor and may be punished by a fine of not more than twenty-five thousand dollars ($25,000) or by imprisonment in the county jail for not more than one (1) year, or by both fine and imprisonment.

History. Acts 2001, No. 1407, § 1.

11-5-405. Exclusion for insurers.

Notwithstanding any language in this subchapter to the contrary, this subchapter shall not apply to an insurer or to an individual or third party dealing with an insurer in the ordinary course of underwriting, conducting, or administering the business of life, disability income, or long-term care insurance, including, but not limited to, actions taken by an insurer or an individual or third party dealing with an insurer in connection with life, disability income, or long-term care insurance made available by an employer to its employees.

History. Acts 2001, No. 1407, § 1.

Subchapter 5 — Employee Microchip Implantation

11-5-501. Microchip implantation of employees — Definitions.

  1. As used in this section:
    1. “Employee” means a person who:
      1. Is employed by an employer; or
      2. Contracts to perform certain work away from an employer's premises, uses his or her own methods to accomplish the work, and is subject to the control of the employer only as to the results of performed work;
    2. “Employer” means:
      1. An individual, partnership, association, corporation, commercial entity, this state, or a political subdivision of the state; or
      2. A person or a group that acts directly or indirectly in the interest of or in relation to an individual, partnership, association, corporation, commercial entity, this state, or a political subdivision of the state; and
    3. “Microchip” means technology that:
      1. Is designed to be implanted in the body of an individual; and
      2. Contains a unique identification number or personal information that can be noninvasively retrieved or transmitted with an external scanning device.
  2. An employer shall not ask on an application for employment or inquire during an interview if a prospective employee will consent to having a microchip implanted in his or her body.
  3. An employer shall not require an employee to have a microchip implanted in the employee's body as a condition of employment.
  4. An employer shall provide reasonable accommodations for an employee who does not consent to having a microchip implanted in his or her body.
    1. An employer shall not:
      1. Coerce an employee into consenting to have a microchip implanted in his or her body;
      2. Create a hostile work environment for an employee who does not consent to having a microchip implanted in his or her body;
      3. Withhold advancement within the company from an employee who does not consent to having a microchip implanted in his or her body;
      4. Withhold a salary or wage increase from an employee who does not consent to having a microchip implanted in his or her body; or
      5. Dismiss an employee based on the decision of the employee not to consent to having a microchip implanted in his or her body.
    2. For the purposes of subdivision (e)(1) of this section, “coerce” means:
      1. The use of physical violence, a threat, intimidation, or retaliation with the purpose of causing a reasonable individual of ordinary susceptibilities to acquiesce when the individual otherwise would not;
      2. The conditioning of a private or public benefit, including without limitation employment, promotion, or another employment benefit, with the purpose of causing a reasonable individual of ordinary susceptibilities to acquiesce when the individual otherwise would not; or
      3. The use of any other means with the purpose of causing a reasonable individual of ordinary susceptibilities to acquiesce when the individual otherwise would not.
    1. A microchip may be implanted in an employee's body at the request of an employer if the employee provides the employer with written consent.
      1. An employee may request the removal of the microchip at any time.
      2. If an employee requests the removal of the microchip, the microchip implant shall be removed within thirty (30) days of the employee's request.
  5. If an employee receives a microchip implant at the request of an employer, the employer shall:
    1. Pay all the costs associated with implanting and removing the microchip;
    2. Pay all the medical costs incurred by the employee as a result of any bodily injury to the employee caused by the implantation of the microchip or the presence of the microchip in the employee's body; and
    3. Disclose to the employee:
      1. The data that will be maintained on the microchip; and
      2. How the data that is maintained on the microchip will be used by the employer.
    1. If an employee is terminated from employment, the microchip implant shall be removed from the employee's body within thirty (30) days of the employee's termination.
      1. An employee may elect to retain an implanted microchip after the termination of the employee's employment.
      2. If an employee elects to retain an implanted microchip after termination of employment, the employee assumes responsibility for all costs associated with the microchip, and subsection (g) of this section shall not apply.
  6. This section does not prohibit an employer from using alternative noninvasive technology that is intended to track the movement of an employee.

History. Acts 2019, No. 516, § 1.

Chapter 6 Child Labor

Cross References. Exemption, children employed in entertainment industry, § 11-12-101 et seq.

Effective Dates. Init. Meas. 1914, No. 2, § 15: effective on passage. Declared effective by Governor, Oct. 13, 1914.

Acts 1967, No. 641, § 4: approved Apr. 6, 1967. Emergency clause provided: “It is found and declared by the General Assembly that the providing for children of an opportunity to develop a business interest and to promote in them a spirit of industry is essential to the public health, safety and welfare; that the provisions of this Act are immediately needed for the accomplishment of this purpose and that only by giving immediate effect to this Act can these purposes be realized to the fullest possible extent. It is, therefore, declared that an emergency exists, and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in force from and after its passage.”

Acts 1973, No. 449, § 3: Mar. 23, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an increase in juvenile delinquency in the State of Arkansas, that the lack of suitable employment opportunities for minors contributes to the cause of delinquency, and that this Act is immediately necessary in order to assist in alleviating juvenile delinquency and providing additional employment opportunities to the youth of the State. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 1975, No. 11, § 3: Jan. 30, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that there are certain restrictions placed by law upon the employment of persons between the ages of sixteen and eighteen years; that many persons between the ages of sixteen and eighteen years have graduated from high school, vocational, or technical schools, and are employable for more hours than the law presently permits; that there are ample safeguards for employees between the ages of sixteen and eighteen years in the Fair Labor Standards Act, 29 U.S.C. 201 et seq., against oppressive child labor; that this Act is immediately necessary to provide additional employment opportunities to the youth of this State. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 1991, No. 1170, § 5: Apr. 10, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Child Labor Laws of this state prohibit children from working as “batboys” or “batgirls” at baseball games; that children need this opportunity to develop business interest related to professional baseball and to promote in them a spirit of thrift and industry by encouraging their involvement in situations where the parent, child and community will be benefitted; and that this act provides the opportunity for children to serve as “batboys” or “batgirls”. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 1120, § 5: Apr. 13, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that persons engaged in the agricultural industry are suffering from a hardship because there are not enough employees available to adequately harvest crops; that it would advantageous to the State of Arkansas to allow persons engaged in the agriculture industry to hire persons between the ages of twelve (12) and sixteen (16) years outside of school hours; that presently there are restrictions placed by law upon the employment of persons between the ages of twelve (12) and sixteen (16) years; that there are ample safeguards for employees between the ages of twelve (12) and sixteen (16) in the Fair Labor Standards Act, 29 U.S.C. 201, et seq., against oppressive child labor; that the provisions of this act are consistent with the provisions of the Fair Labor Standards Act; that this act is immediately necessary to protect the livelihood of Arkansas farmers and to provide the youth of this State with an opportunity for summer employment. Therefore, and emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 2001, No. 577, § 8: July 1, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that this act must go into effect on the date the biennial appropriation for the Department of Labor goes into effect, which is July 1, 2001, and that the delay in the effective date of this act could work irreparable harm upon the proper administration and provisions of essential government programs. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2001.”

Acts 2015, No. 162, § 2: Feb. 23, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are restrictions on the number of hours of employment or days of employment for a person who is seventeen-years old or seventeen (17) years of age; that many employers have avoided the excessive time and costs necessary to comply with the restrictions by employing individuals who are adults; that by removing the restrictions on employment of persons who are seventeen-years old or seventeen (17) years of age, an employer will have greater flexibility to hire employees; and that this act is immediately necessary because persons who are seventeen-years old or seventeen (17) years of age may be considered for employment opportunities that have previously been unavailable. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Employer's liability for injury to babysitter in home or similar premises. 29 A.L.R.4th 304.

Am. Jur. 48A Am. Jur. 2d, Labor, § 2653 et seq.

C.J.S. 43 C.J.S., Infants, § 99.

51 C.J.S., Labor, § 4.

Case Notes

Constitutionality.

This chapter is a valid exercise of the state's police power and is not invalid as abridging the freedom of children to contract. Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S.W. 887 (1920).

Newspaper Carriers.

A contract with a boy thirteen years old to deliver newspapers, solicit insurance, and canvass for new customers at night violated the letter, the spirit, and the clear purposes of this chapter. Clark v. Arkansas Democrat Co., 242 Ark. 133, 413 S.W.2d 629 (1967).

Workers' Compensation Law.

The Workers' Compensation Law, chapter 9 of this title, affords the exclusive remedy allowed a minor employee against the employer for compensation for injuries sustained by the minor in the course of employment, notwithstanding the minor was employed in violation of this chapter. Cummings v. J.J. Newberry Co., 211 Ark. 854, 203 S.W.2d 187 (1947).

Cited: Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442 (1956).

11-6-101. Industrial education not prohibited.

Nothing in this chapter shall prevent children of any age from receiving industrial education furnished by the United States, this state, or any city or town in the state and duly approved by the State Board of Education or by any other duly constituted public authority.

History. Init. Meas. 1914, No. 1, § 12, Acts 1915, p. 1505; C. & M. Dig., § 7098; Pope's Dig., § 9080; A.S.A. 1947, § 81-713.

11-6-102. Certain children excepted from chapter.

No boy or girl between the ages of sixteen (16) years and eighteen (18) years shall be subject to the provisions of this chapter if:

  1. The boy or girl is a graduate of any high school, vocational school, or technical school;
  2. The boy or girl is married or is a parent.

History. Init. Meas. 1914, No. 1, § 6, Acts 1915, p. 1505; C. & M. Dig., § 7091; Pope's Dig., § 9073; Acts 1975, No. 11, § 1; 1977, No. 326, § 1; A.S.A. 1947, § 81-707.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Labor Law, 1 U. Ark. Little Rock L.J. 217.

Case Notes

Cited: Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).

11-6-103. Penalty — Disposition of fines.

    1. Any person, firm, corporation, partnership, association, parent, guardian, or custodian who employs or permits or suffers any child to be employed or to work in violation of this subchapter or §§ 11-12-101 — 11-12-105, or any rules issued thereunder, shall be subject to a civil penalty of not less than fifty dollars ($50.00) and not more than one thousand dollars ($1,000) for each violation.
    2. Each day the violation continues shall with respect to each child so employed or permitted work constitute a separate offense.
  1. The Director of the Division of Labor shall determine the amount of such penalty and shall consider the appropriateness of such penalty to the size of the business and the gravity of the violation.
  2. The determination by the director shall be final unless within fifteen (15) days after receipt of notice thereof by certified mail, the person, firm, corporation, partnership, or association charged with the violation notifies the director in writing that he or she contests the proposed penalty. In the event that penalty is contested, a final determination shall be made pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  3. The amount of penalty when finally determined may be recovered in a civil action brought by the director in a court of competent jurisdiction, without paying costs or giving bond for costs.
  4. Sums collected under this section shall be paid into the Department of Labor and Licensing Special Fund.
  5. Assessment of a civil penalty by the director shall be made no later than two (2) years from the date of the occurrence of the violation.
  6. In addition to the civil penalty provided by this section, the director is authorized to petition any court of competent jurisdiction, without paying costs or giving bond for costs, to enjoin or restrain any person, firm, corporation, partnership, or association who violates the provisions of this subchapter or §§ 11-12-101 — 11-12-105, or any rule issued thereunder.

History. Init. Meas. 1914, No. 1, § 13, Acts 1915, p. 1505; C. & M. Dig., § 7099; Pope's Dig., § 9081; A.S.A. 1947, § 81-714; Acts 1991, No. 509, § 1; 2001, No. 577, § 7; 2019, No. 315, §§ 770, 771; 2019, No. 910, §§ 5337, 5338.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(1); and substituted “rule” for “regulation” in (g).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b); and substituted “Department of Labor and Licensing Special Fund” for “Department of Labor Special Fund” in (e).

11-6-104. Children under age 14 years prohibited from working — Exception.

No child under the age of fourteen (14) years shall be employed or permitted to work in any remunerative occupation in this state, except that during school vacation, children under fourteen (14) years may be employed by their parents or guardians in occupations owned or controlled by them.

History. Init. Meas. 1914, No. 1, § 1, Acts 1915, p. 1505; C & M. Dig., § 7085; Pope's Dig., § 9067; A.S.A. 1947, § 81-701.

Publisher's Notes. This section was held to supersede § 18-42-102 as to employment contracts with minors under fourteen years of age in Clark v. Arkansas Democrat Co., 242 Ark. 133, 413 S.W.2d 629 (1967).

Cross References. Contracts of minors over 15 years of age, § 18-42-102.

11-6-105. Children under age 16 years — Restrictions on employment generally.

No child under sixteen (16) years shall be employed or permitted to work in any occupation dangerous to the life and limb, or injurious to the health and morals of the child, or in any saloon, resort, or bar where intoxicating liquors of any kind are sold or dispensed.

History. Init. Meas. 1914, No. 1, § 2, Acts 1915, p. 1505; C. & M. Dig., § 7086; Pope's Dig., § 9068; Acts 1977, No. 321, § 1; A.S.A. 1947, § 81-702.

Cross References. Alcoholic beverages, § 3-1-101 et seq.

Research References

Ark. L. Rev.

Torts-Negligence: Effect of Violation of Safety Statute on the Admissibility of Evidence of Custom and Industry Standards, 28 Ark. L. Rev. 397.

Case Notes

Purpose.

It was the purpose of this section to prevent children from having access to complex combination of mechanical parts at a time and in circumstances when harm might conceivably result, and not to prohibit a person under 16 years of age from cleaning an engine made harmless by disuse and without any moving parts. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

Instruction.

In action for injuries received by 15-year-old child burned as a result of using gasoline to clean engine, instruction that mere use of gasoline was not in itself negligence, unless it was shown that it was used under such circumstances as would cause a reasonably prudent person to anticipate that it would be ignited, was correct. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

Negligence Per Se.

Employment in violation of law is negligence per se and renders employer liable for an injury received by a child while thus employed. Cox Cash Stores, Inc. v. Allen, 167 Ark. 364, 268 S.W. 361 (1925).

Third Persons.

Violation of this section could not be considered as evidence of negligence where third party was injured by child operating machinery, since this section does not prescribe standards of conduct for child employees toward third persons which absolve a manufacturer from liability. Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981).

11-6-106. Children under age 16 years — Prohibitions against certain kinds and places of work — Exceptions.

    1. No child under the age of sixteen (16) years shall be employed upon the stage of any theater or concert hall or in connection with any theatrical performance or other exhibition or show, and no child shall be employed who has not passed four (4) yearly grades in the public school or equivalent thereof.
    2. However, a child under sixteen (16) years may be employed in a theatrical production or in a saloon, resort, or bar when the child and his or her parent or guardian perform together as part of the same show and the parent or guardian remains with the child in order to supervise him or her.
  1. No child under the age of sixteen (16) years shall be employed, permitted, or suffered to work in any capacity:
    1. In, about, or in connection with any processes in which dangerous or poisonous acids or gases or other chemicals are used;
    2. In soldering;
    3. In occupations causing dust in injurious quantities;
    4. In scaffolding;
    5. In heavy work in the building trades;
    6. In any tunnel or excavation;
    7. In any mine, coal breaker, coke oven, or quarry; or
    8. In any pool or billiard room.

History. Init. Meas. 1914, No. 1, §§ 2, 4, Acts 1915, p. 1505; C. & M. Dig., §§ 7086, 7089; Pope's Dig., §§ 9068, 9071; Acts 1977, No. 321, § 1; A.S.A. 1947, §§ 81-702, 81-705; 1995, No. 858, § 1.

Cross References. Working in mines, ages, § 11-7-318.

Research References

Ark. L. Rev.

Torts-Negligence: Effect of Violation of Safety Statutes on the Admissibility of Evidence of Custom and Industry Standards, 28 Ark. L. Rev. 397.

Case Notes

Purpose.

It was the purpose of this section to prevent children from having access to complex combination of mechanical parts at a time and in circumstances when harm might conceivably result, and not to prohibit a person under 16 years of age from cleaning the base of an engine made harmless by disuse and without any moving parts. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

Instructions.

In action for injuries received by 15-year-old child burned as a result of using gasoline to clean engine, instruction that mere use of gasoline was not in itself negligence, unless it was shown that it was used under such circumstances as it would cause a reasonably prudent person to anticipate that it would be ignited, was correct. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

Negligence Per Se.

Employment in violation of law is negligence per se and renders employer liable for an injury received by a child while thus employed. Cox Cash Stores, Inc. v. Allen, 167 Ark. 364, 268 S.W. 361 (1925).

Third Persons.

Violation of this section could not be considered as evidence of negligence where third party was injured by child operating machinery, since this section does not prescribe standards of conduct for child employees toward third persons which absolve a manufacturer from liability. Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981).

11-6-107. Children under age 16 years — Prohibitions against certain kinds and places of work.

  1. No child under sixteen (16) years shall be employed or permitted to work at any of the following occupations:
    1. Adjusting any belt to any machinery;
    2. Sewing or lacing machine belts in any workshop or factory;
    3. Oiling, wiping, or cleaning machinery or assisting therein;
    4. Operating or assisting in operating any of the following machines:
      1. Circular or band saws;
      2. Wood shapers;
      3. Wood jointers;
      4. Planers;
      5. Sandpaper or wood polishing machinery;
      6. Wood turning or boring machinery;
      7. Picker machines or machines used in picking wool;
      8. Carding machines;
      9. Job or cylinder printing presses operated by power other than foot power;
      10. Boring or drill presses;
      11. Stamping machines used in metal or in paper or leather manufacturing;
      12. Metal or paper cutting machines;
      13. Corner staying machines in paper box factories;
      14. Steam boilers;
      15. Dough brakes or cracker machinery of any description;
      16. Wire or iron straightening or drawing machinery;
      17. Rolling mill machinery;
      18. Washing, grinding, or mixing machinery; or
      19. Laundering machinery;
    5. In proximity to any hazardous or unguarded belt, machinery, or gearing; or
    6. Upon any railroad, whether steam, electric, or hydraulic.
    1. The Director of the Division of Labor may, from time to time after a hearing duly had, determine what other occupations are sufficiently dangerous to the life or limb or injurious to the health or morals of children under sixteen (16) years to justify their exclusion therefrom. No child under sixteen (16) years of age shall be employed or permitted to work in any occupation thus determined to be dangerous or injurious.
    2. There shall be right of appeal from any such determination pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.

History. Init. Meas. 1914, No. 1, § 3 (1st and 2nd par.), Acts 1915, p. 1505; C. & M. Dig., §§ 7087, 7088; Pope's Dig., §§ 9069, 9070; A.S.A. 1947, §§ 81-703, 81-704; Acts 1991, No. 565, § 1; Acts 2019, No. 910, § 5339.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the first sentence of (b)(1).

Case Notes

Construction.

Machinery as used in this chapter means a more or less complex combination of mechanical parts operating in such manner as to fascinate or confound a person of tender years. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

Purpose.

It was the purpose of this section to prevent children from having access to complex combination of mechanical parts at a time and in circumstances when harm might conceivably result, and not to prohibit a person under 16 years of age from cleaning the base of an engine made harmless by disuse and without any moving parts. Blankenship v. W.E. Cox & Sons, 204 Ark. 427, 162 S.W.2d 918 (1942).

11-6-108. Children under age 16 years — Hours of employment.

No child under the age of sixteen (16) years shall be employed, permitted, or suffered to work for more than six (6) days in any week, nor more than forty-eight (48) hours in any week, nor more than eight (8) hours in any day or before 6:00 a.m. or after 7:00 p.m., except that on nights preceding nonschool days, children under the age of sixteen (16) years may be employed until 9:00 p.m.

History. Init. Meas. 1914, No. 1, § 5, Acts 1915, p. 1505; C. & M. Dig., § 7090; Pope's Dig., § 9072; Acts 1973, No. 449, § 1; A.S.A. 1947, § 81-706.

Research References

Ark. L. Rev.

Legal Control of Business in Arkansas, 5 Ark. L. Rev. 137.

Case Notes

Negligence.

In action for damages for injury to minor, failure of employer to secure certificate was evidence of negligence to be considered by the jury. Cox Cash Stores, Inc. v. Allen, 167 Ark. 364, 268 S.W. 361 (1925).

11-6-109. Children under age 16 years — Employment certificate required.

  1. No person, firm, or corporation shall employ or permit any child under sixteen (16) years to work in or in connection with any establishment or occupation unless the person, firm, or corporation employing the child procures and keeps on file, accessible to the Division of Labor and the Division of Elementary and Secondary Education, or local school officials, an employment certificate as provided in this section.
    1. The employment certificate shall be issued only by the Director of the Division of Labor.
    2. Application for an employment certificate shall be made on a form approved by the director and shall require submission of the following:
      1. Proof of age;
      2. A description of the work and work schedule; and
      3. Written consent of the parent or guardian.

History. Init. Meas. 1914, No. 1, §§ 7-10, Acts 1915, p. 1505; Acts 1917, No. 391, § 1, p. 1849; C. & M. Dig., §§ 7092-7095; Pope's Dig., §§ 9074-9077; A.S.A. 1947, §§ 81-708—81-711; Acts 1991, No. 565, § 2; 2019, No. 910, §§ 5340, 5341.

Amendments. The 2019 amendment substituted “Division of Labor” for “Department of Labor” and “Division of Elementary and Secondary Education” for “Department of Education” in (a); and substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (b)(1).

11-6-110. Children under age 17 years — Hours of employment.

A child under seventeen (17) years of age shall not be employed or permitted to work in any occupation:

  1. More than six (6) days in any week;
  2. More than fifty-four (54) hours in any week;
  3. More than ten (10) consecutive hours in any one (1) day;
  4. More than ten (10) hours in a twenty-four-hour period; or
  5. Before 6:00 a.m. or after 11:00 p.m., except that the limitations of 6:00 a.m. and 11:00 p.m. shall not apply to children under seventeen (17) years of age employed on nights preceding nonschool days in occupations determined by rule of the Division of Labor to be sufficiently safe for their employment.

History. Init. Meas. 1914, No. 1, § 6, Acts 1915, p. 1505; C. & M. Dig., § 7091; Pope's Dig., § 9073; Acts 1973, No. 449, § 2; 1975, No. 11, § 1; 1977, No. 326, § 1; A.S.A. 1947, § 81-707; 2005, No. 939, § 1; 2015, No. 162, § 1.

Amendments. The 2015 amendment substituted “17” for “18” in the section heading; in the introductory language, substituted “A child” for “No boy or girl,” “seventeen (17) years of age” for “the age of eighteen (18) years,” and “shall not be employed or permitted” for “shall be employed, permitted, or suffered”; and substituted “seventeen (17) years of age” for “the age of eighteen (18) years” in (5).

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Labor Law, 1 U. Ark. Little Rock L.J. 217.

Case Notes

Injury.

An injured minor employee cannot recover from the employer on account of the employer's violation of this section unless the violation was the proximate cause of the injury. Hogan v. Bateman Contracting Co., 184 Ark. 842, 43 S.W.2d 721 (1931).

Cited: Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).

11-6-111. Inspection of workplace — Prosecution of violators.

  1. The Director of the Division of Labor or his or her designee shall have the right to enter any building or premises for the purpose of inspection to ascertain whether any child is employed or permitted to work in violation of the provisions of this subchapter.
    1. It shall be the duty of the director to enforce and administer the provisions of this subchapter.
    2. The director is authorized to adopt rules for the enforcement and administration of this subchapter.
    3. The director may revoke an employment certificate for cause.

History. Init. Meas. 1914, No. 1, § 11, Acts 1915, p. 1505; C. & M. Dig., §§ 7096, 7097; Pope's Dig., §§ 9078, 9079; A.S.A. 1947, § 81-712; Acts 1991, No. 565, § 3; 2019, No. 315, § 772; 2019, No. 910, § 5342.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b)(2).

The 2019 amendment by No. 910 substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-6-112. Newspaper delivery work permitted.

  1. The purpose of this section is to provide children with an opportunity to develop business interests and to promote in them a spirit of thrift and industry by encouragement of their engagement in a particular situation when the child, parent, and community will be benefited and which tends to prevent juvenile delinquency.
    1. A minor may be employed or may enter into contracts, upon written approval of the parent or guardian of the minor, to buy, sell, and deliver and to collect for newspapers during the school term or during vacation, if the child is attending school, as required by law, and does not engage in the employment or activity except at times when his or her presence is not required at school.
    2. The provisions of §§ 11-6-101 — 11-6-111, with respect to child labor, shall not be applicable with respect to the contract or employment as authorized in this section.
    1. The provisions of this section shall be applicable only where the provision is made by the employer or newspaper company contractor to provide insurance or indemnity for injury to or death of the minor arising out of bodily injury caused by an accident when the accident hazard arises while the minor is on the business of the employer or performing the activities set out in the contract.
      1. The schedule of benefits under this program of insurance or indemnity shall provide at least ten thousand dollars ($10,000) for accidental death of the minor, and the sum shall be reasonably and equitably prorated for dismemberment of the minor.
      2. The insurance or indemnity shall further provide blanket medical coverage for all hospital and medical expenses up to five thousand dollars ($5,000) resulting from an accident.
      3. This hospital and medical expense protection shall be excess insurance coverage or indemnity over and above any other collectible insurance.

History. Acts 1967, No. 641, §§ 1, 2; A.S.A. 1947, §§ 81-715, 81-716.

Case Notes

Excess Insurance.

The term “excess insurance” has been used so commonly and construed so often that it must be assumed that the legislature used it in accordance with its commonly accepted meaning limiting liability of the insurance carrier only to loss in excess of the coverage provided by any other policy or policies. Moody v. American Fid. Assurance Co., 252 Ark. 899a, 481 S.W.2d 700 (1972).

11-6-113. Professional baseball work as batboy or batgirl permitted.

  1. The purpose of this section is to provide children with an opportunity to develop business interests related to professional baseball and to promote in them a spirit of thrift and industry by encouragement of their engagement in a particular situation when the child, parent, and community will be benefited and which tends to prevent juvenile delinquency.
    1. A minor may be employed or may enter into contracts, upon written approval of the parent or guardian of the minor, to serve as and perform the duties of a batboy or batgirl for a professional baseball club, during the school term, or during vacation, if the child is attending school as required by law and does not engage in the employment or activity except at times when his or her presence is not required at school.
    2. The provisions of §§ 11-6-101 — 11-6-112, with respect to child labor, shall not be applicable with respect to the contract or employment as authorized in this section.
  2. The provisions of this section shall be applicable only where the provision is made by the employer or professional baseball club to provide insurance or indemnity for injury to or death of the minor arising out of bodily injury caused by an accident when the accident hazard arises while the minor is on the business of the employer or performing the activities set out in the contract.
  3. No child shall be employed or permitted to work pursuant to the provisions of this section for more than ten (10) hours in any day or after 11:00 p.m. on nights preceding school days or after 1:00 a.m. on nights preceding nonschool days.

History. Acts 1991, No. 1170, § 1.

11-6-114. Seasonal agricultural labor permitted.

  1. As used in this section, “employed in agriculture” means employed as a seasonal agricultural laborer to pick, plant, harvest, grade, sort, or haul any crop, fruit, or vegetable by use of the employee's hands.
  2. Except as provided in this section, the provisions of this chapter relating to child labor, shall not apply to any employee employed in agriculture outside of school hours of the school district where such employee is living while he or she is so employed, if such employee is fourteen (14) years of age or older.
  3. The provisions of §§ 11-6-108 and 11-6-110, relating to hours of employment, shall apply to any person employed under this section.

History. Acts 1993, No. 1120, § 1.

11-6-115. Domestic labor and child care in connection with church functions permitted — Definition.

  1. As used in this section, “domestic labor” means any occasional, irregular, or incidental work related to and in or around private residences, including, but not limited to babysitting, pet sitting, similar household chores, and manual yard work. This definition specifically excludes industrial homework, work for a third party such as a sitting service, and any activity determined by the Director of the Division of Labor to be hazardous pursuant to the provisions of § 11-6-107(b).
  2. Except as provided in this section, the provisions of this chapter relating to child labor, shall not apply to any child employed for the purposes of domestic labor.
  3. Except as provided in this section, the provisions of this chapter relating to child labor, shall not apply to employees of churches performing childcare services where children are cared for during short periods of time while parents or persons in charge of the children are attending church services or functions.

History. Acts 1997, No. 934, § 1; 2019, No. 910, § 5343.

Amendments. The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in the second sentence of (a).

11-6-116. Sports officiating permitted in certain sports.

  1. As used in this section, “employed as a sports official” means employed as an official, referee, or umpire in organized youth football, baseball, softball, basketball, or soccer leagues.
  2. Except as provided in this section, the provisions of this chapter relating to child labor shall not apply to a minor at least eleven (11) years of age employed as a sports official for an age bracket younger than the minor's own age if:
    1. An adult representing the state or local athletic program is on the premises at which the athletic program event is occurring; and
    2. A person responsible for the state or local athletic program possesses a written acknowledgment signed by the minor's parent or guardian consenting to the minor's employment as a sports official.
  3. The provisions of §§ 11-6-108 and 11-6-110, relating to hours of employment, shall apply to any minor employed under this section.

History. Acts 2005, No. 940, § 1.

Chapter 7 Regulation of Mines

Research References

ALR.

Federal Coal Mine Health and Safety Act, liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 A.L.R.4th 13.

Labor union's liability for injury or death allegedly resulting from unsafe working conditions. 14 A.L.R.4th 1161.

Am. Jur. 53A Am. Jur. 2d, Mines, § 255 et seq.

C.J.S. 58 C.J.S., Mines, § 334 et seq.

Subchapter 1 — General Provisions

[Reserved]

Subchapter 2 — State Mine Inspector

Effective Dates. Acts 1893, No. 125, § 17: effective 90 days after passage.

Acts 1917, No. 130, § 9: July 1, 1917. Emergency clause provided: “This act being necessary for the immediate protection and preservation of the public peace, health and safety, an emergency is hereby declared, and all laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect from and after July first, 1917.”

Acts 1923, No. 120, § 3: July 1, 1923.

Acts 1937, No. 233, § 3: effective on passage.

Acts 1949, No. 268, § 22: effective on passage.

Acts 1983, No. 532, § 2: Mar. 18, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law relating to qualifications for State Mine Inspector is confusing and could be interpreted to impose unreasonable and unnecessary restrictions on the position of State Mine Inspector; that this Act is designed to clarify and simplify the qualifications for State Mine Inspector and to preserve those qualifications which are necessary to assure that the State Mine Inspector is a highly qualified person, and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

11-7-201. Act cumulative.

This act shall not repeal any of the mining laws of the state, except wherein it specifically conflicts, but shall be cumulative to all mining laws in force prior to July 1, 1917.

History. Acts 1917, No. 130, § 8, p. 683; C. & M. Dig., § 7258; Pope's Dig., § 9314; A.S.A. 1947, § 52-412.

Meaning of “this act”. Acts 1917, No. 130, codified as §§ 11-7-20111-7-205, 11-7-208, 11-7-211.

11-7-202. Penalties.

    1. Any person who shall willfully obstruct or hinder the mine inspector in the discharge of his or her duties and every owner, lessee, agent, or manager of a mine who refuses or neglects to furnish the State Mine Inspector the means necessary for making entry, inspection, examination, or inquiry under the mining laws of this state shall be deemed guilty of a misdemeanor.
    2. Upon conviction, the person shall be punished as provided in subsection (c) of this section.
    1. Should the mine inspector willfully fail or refuse to perform any of the duties required under the provisions of the mining laws of this state, he or she shall be deemed guilty of a misdemeanor.
    2. Upon conviction, he or she shall be fined in a sum not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) and, upon a second conviction for such failure or refusal, shall be removed from office by the Governor and his or her successor appointed within thirty (30) days from the date of removal.
    1. Any owner, agent, lessee, or other person convicted of the violation of any of the provisions of the mining laws of this state or failing in any manner to comply therewith shall be deemed guilty of a misdemeanor.
    2. Upon conviction, the person shall be fined in any sum not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) except where provisions of the mining laws otherwise provide penalties.
  1. Each day any violation or failure shall continue on the part of any owner, agent, lessee, or other person shall be deemed a separate offense.

History. Acts 1917, No. 130, § 6, p. 683; C. & M. Dig., § 7256; Pope's Dig., § 9312; A.S.A. 1947, § 52-410.

11-7-203. Prosecution of violations.

It shall be and is made the duty of the prosecuting attorney in the district wherein the State Mine Inspector shall arrest or cause to be arrested any person violating the provisions of the mining laws of the state to at once take charge of and prosecute the person with reasonable diligence.

History. Acts 1917, No. 130, § 7, p. 683; C. & M. Dig., § 7257; Pope's Dig., § 9313; A.S.A. 1947, § 52-411.

11-7-204. Appointment, term, and qualifications.

  1. The Governor shall appoint a State Mine Inspector, who shall hold office for a term of two (2) years, beginning on July 1 of every odd-numbered year and until his or her successor is appointed and qualified.
    1. The mine inspector shall be a citizen of good repute and temperate habits, and he or she must have had five (5) years' experience as a practical miner.
    2. While holding office, the mine inspector shall not be connected with or engaged, directly or indirectly, as owner, operator, agent, or director of any coal mine or other mining interest.
  2. The Governor and the Secretary of the Department of Labor and Licensing shall have the power to remove a mine inspector for cause.
    1. Before entering upon the duties of his or her office and within twenty (20) days after his or her appointment, the mine inspector shall make and execute a bond to the State of Arkansas, with one (1) or more sufficient sureties, in the sum of five thousand dollars ($5,000), conditioned upon the faithful performance of his or her duties, which shall be approved by the Governor.
    2. When the bond is so approved, he or she shall also take the oath of office prescribed by the Arkansas Constitution.
      1. In the event that the mine inspector shall fail to make and execute the bond within the time prescribed by subdivision (d)(1) of this section, his or her appointment shall be declared void.
      2. It is made the duty of the Governor to appoint and have qualified a proper person in his or her stead, as contemplated by the provisions of this section.
  3. The State Mine Inspector shall report to the Secretary of the Department of Labor and Licensing and shall be an employee of the Department of Labor and Licensing.

History. Acts 1917, No. 130, §§ 1, 2, p. 683; C. & M. Dig., §§ 7249, 7250; Acts 1923, No. 120, § 1; 1937, No. 233, § 1; Pope's Dig., §§ 9305, 9306; Acts 1983, No. 532, § 1; A.S.A. 1947, §§ 52-401, 52-402; Acts 2019, No. 910, §§ 5344, 5345.

A.C.R.C. Notes. The operation of subsection (d) of this section was suspended by adoption of a self-insured fidelity bond program for public officers, officials, and employees, effective July 20, 1987, pursuant to § 21-2-701 et seq. The subsection may again become effective upon cessation of coverage under that program. See § 21-2-703.

Publisher's Notes. Acts 1937, No. 233, § 2 provided that the act would not be construed as repealing or modifying any section or provision of the mining laws then in effect, except where they were in conflict, but would be cumulative thereto.

Amendments. The 2019 amendment substituted “and the Secretary of the Department of Labor and Licensing” for “alone” in (c); and added (e).

Cross References. Oath of officers, Ark. Const., Art. 19, § 20.

11-7-205. Office, staff, and compensation.

  1. The State Mine Inspector shall have an office, which may be located in Fort Smith, and shall safely keep all records, papers, documents, and other property pertaining to or coming into his or her hands by virtue of his or her office and deliver them to his or her successor.
    1. The mine inspector shall be allowed the salary, expenses, and office and clerical assistance as provided by law.
      1. Salaries and expenses shall be paid out of the General Revenue Fund Account of the State Apportionment Fund upon vouchers issued by the mine inspector, pursuant to appropriations duly made.
      2. The Auditor of State shall issue the warrants on the voucher, and the Treasurer of State shall pay the same.
  2. The mine inspector, in addition to his or her salary and other expenses, shall be allowed one (1) stenographer, who shall act as clerk for the mine inspector and who shall receive a salary to be paid out of the State Treasury, as other salaries are paid.
    1. He or she shall also be allowed for office expenses, in keeping and maintaining his or her office, a sum not to exceed the sum of four hundred fifty dollars ($450) per annum, to be paid out of the State Treasury, as other expenses of his or her office are paid.
    2. He or she shall also be allowed all necessary postage, stationery, and other expenses of a similar character necessary for the transaction of the business of the office.
  3. In addition to his or her salary and other expenses provided for in this section, he or she shall be allowed necessary traveling expenses while in the performance of the duties of the office, which shall not exceed the sum of one thousand two hundred dollars ($1,200) per annum.
  4. The salary and expenses shall be paid as in the case of other state officers.

History. Acts 1917, No. 130, §§ 1, 3, p. 683; C. & M. Dig., §§ 7249, 7251; Acts 1923, No. 120, §§ 1, 2; 1937, No. 233, § 1; Pope's Dig., §§ 9305, 9307; Acts 1943, No. 413, § 2; 1983, No. 532, § 1; A.S.A. 1947, §§ 52-401, 52-403, 52-404; Acts 2003, No. 461, § 1.

Publisher's Notes. As to cumulative effect of Acts 1937, No. 233, see Publisher's Notes to § 11-7-204.

11-7-206. State Mine Inspector — Powers and duties.

  1. In addition to the duties imposed upon him or her by law, the State Mine Inspector shall:
    1. Recommend to the various operators of coal mines throughout the state all safety rules that he or she shall deem advisable; and
    2. Investigate the necessity and feasibility of purchasing and maintaining safety, first aid, rescue, or recovery equipment that he or she shall find feasible and necessary.
    1. If he or she shall find the purchase and maintenance of the above-described equipment feasible and necessary, he or she is authorized to purchase and maintain the equipment after the legislative appropriation of necessary funds from the General Revenue Fund Account of the State Apportionment Fund, as directed by the appropriation, and the expenses thereof shall be paid in the same manner as the items provided for in § 11-7-205(b) are directed to be paid.
    2. All equipment as above described must be such that it will be adaptable for use in and will be available for use in any and all coal mines in the State of Arkansas.
  2. In his or her annual report, the mine inspector shall:
    1. Enumerate all recommendations that he or she has made for safety measures and the result thereof; and
    2. Recommend to each regular session of the General Assembly the measures as he or she deems necessary for the promotion of safety in coal mines.
  3. He or she shall also request appropriations of all funds necessary to accomplish the purposes of this section and § 11-7-205.

History. Acts 1943, No. 413, § 3; A.S.A. 1947, § 52-406; Acts 2009, No. 962, § 28; 2011, No. 980, § 2; 2019, No. 315, § 773.

Publisher's Notes. Act 1939, No. 101, § 1, provided that all statutes in force prior to February 17, 1939, which regulated coal mines or fixed the duties and jurisdiction of the state mine inspector should apply to all coal mines and their operators, irrespective of the number of persons employed in the mine.

Amendments. The 2011 amendment subdivided part of former (c) as (c)(1) and (2); and deleted “in the report, he or she shall” at the beginning of (c)(2).

The 2019 amendment substituted “rules” for “regulations” in (a)(1).

11-7-207. Assistant State Mine Inspector.

  1. There is created the office of Assistant State Mine Inspector.
  2. His or her term of office shall be for a period of two (2) years, to run coextensively with the term of the State Mine Inspector and until his or her successor has been appointed and qualified.
  3. He or she shall be appointed by the Governor and work under the direction of the State Mine Inspector.
  4. He or she may be removed by the Governor for neglect of duty or for any other reasonable cause.
  5. He or she shall have been a resident of the State of Arkansas for the number of years and possess the same qualifications as are required of the State Mine Inspector.
    1. Before entering upon the discharge of his or her duties as Assistant State Mine Inspector, he or she shall take and subscribe to the oath of office prescribed by law for the State Mine Inspector and shall execute a bond to the State of Arkansas, with approved security, in the sum of five thousand dollars ($5,000), conditioned upon the faithful performance of his or her duties as such official.
    2. The bond shall be approved as in the case of the State Mine Inspector and, when so approved, shall be filed in the office of the Secretary of State.
  6. The Assistant State Mine Inspector shall report to the State Mine Inspector and shall be an employee of the Department of Labor and Licensing.

History. Acts 1949, No. 268, § 20; A.S.A. 1947, § 52-414; Acts 2019, No. 910, § 5346.

A.C.R.C. Notes. The operation of the bond provisions of subsection (f) was suspended by adoption of a self-insured fidelity bond program for public officers, officials, and employees, effective July 20, 1987, pursuant to § 21-2-701 et seq. The subsection may again become effective upon cessation of coverage under that program. See § 21-2-703.

Amendments. The 2019 amendment added (g).

11-7-208. Inspection of mines.

  1. The State Mine Inspector shall devote his or her entire time to the duties of the office.
    1. It shall be the duty of the mine inspector to examine all mines as often as necessary and not less often than once every three (3) months.
    2. The employees of any mine, as contemplated by the mining laws of this state, shall have authority to call the mine inspector at any time in cases of emergency for the enforcement of the mining laws of this state.
  2. Inspections shall be made, and the mine inspector shall keep a record of inspections, which shall be included in his annual report to the Governor, of:
    1. The works and machinery used or operated by any mine;
    2. The state and condition of the mines as to ventilation, circulation, and condition of the air, drainage, and the number of accidents, injuries, or deaths occurring in or about the mine, the number of persons employed, and the extent to which the laws relating to mines and mining are observed; and
    3. The progress made in improvements for the safety and health sought to be obtained by the provisions of the mining laws of this state, together with all other such facts and information of public interest concerning the conditions of mine development and progress in this state as may be deemed useful and proper.
    1. Should the mine inspector find any violations of the mining laws of this state by any owner, lessee, or agent in charge of any mine, notice shall immediately be given to the owner, lessee, or agent in charge of the mine of the neglect or violation thereof, and, unless it is rectified within a reasonable time, the mine inspector shall institute a prosecution under the laws of the state.
    2. If the mine inspector finds any matter, thing, or practice in or connected with a mine to be dangerous or defective, which makes it unsafe for persons employed therein, notice in writing to the owner, lessee, or agent of the dangerous or unsafe condition shall be given, and the condition shall be remedied by the owner, lessee, or agent without unnecessary delay.
    1. For the purpose of making the inspection and examination as contemplated by this section, the mine inspector shall have the right to enter any mine at any reasonable time, by day or night, but in such manner as shall not necessarily obstruct the workings of the mine.
    2. The owner, lessee, or agent is required to furnish the means necessary for the entry and inspection.
    3. The inspection and examination, as contemplated by this section, shall extend to all coal mines where the mines are operated by shaft, slope, or drift.

History. Acts 1917, No. 130, § 4, p. 683; C. & M. Dig., § 7252; Pope's Dig., § 9308; A.S.A. 1947, § 52-405.

11-7-209. Owner, agent, or operator to facilitate inspections — Failure to comply.

  1. The owner, agent, or operator of a mine is required to furnish all necessary facilities for entering and making the examinations and inspection, and, if the owner, agent, or operator refuses to permit the inspection or to furnish the necessary facilities for entering and making the examinations and inspection, the inspector shall file his or her affidavit, setting forth the refusal, before the judge of the circuit court in the county in which the mine is located.
    1. The judge of the court is granted the power to issue an order commanding the owner, agent, or operator to appear before the judge in chambers or before the circuit court to show cause why he or she refuses to permit the inspection or furnish the necessary facilities for entering and making the examination.
    2. Upon hearing, the judge of the court shall have the power to fine the agent, owner, or operator in any sum not less than fifty dollars ($50.00).

History. Acts 1893, No. 125, § 10, p. 213; C. & M. Dig., § 7253; Pope's Dig., § 9309; A.S.A. 1947, § 52-407.

Publisher's Notes. This section may be partially superseded by § 11-7-202.

11-7-210. Action to enjoin unsafe working conditions.

    1. If the inspector shall, after examination of any mine and the works and machinery pertaining thereto, find the mine worked contrary to the provisions of this act or unsafe for the workmen employed therein, the inspector shall file a complaint before the judge of the circuit court in vacation or the circuit court when in session, in the name of the state, without cost or bond, showing that the owner, agent, or operator has failed to comply with the provisions of this act.
    2. The court or judge, after hearing the cause, shall, if satisfied the law has not been complied with, restrain or enjoin the owner, agent, or operator from operating the mine until the law is complied with.
    1. In all proceedings before the court or judge, the owner, agent, or operator shall have two (2) days' notice of the intended application for restraining order.
    2. The judge or the court shall hear the complaint on affidavits or other testimony that may be offered in support, as well as in opposition thereto, and, if sufficient cause appear, the court, or judge in vacation, by order shall prohibit the further working of any mine in which persons may not be safely employed, or which is worked contrary to the provisions of this act, until the mine has been made safe and the requirements of this act shall have been complied with.
    3. The court shall award such costs in the proceedings as may be just, but any proceedings so commenced shall be without prejudice to any other remedy permitted by law for enforcing the provisions of this act.

History. Acts 1893, No. 125, § 11, p. 213; C. & M. Dig., § 7254; Pope's Dig., § 9310; A.S.A. 1947, § 52-408.

Meaning of “this act”. Acts 1893, No. 125, codified as §§ 11-7-209, 11-7-210, 11-7-30111-7-305, 11-7-308, 11-7-30911-7-311, 11-7-317, 11-7-318, 15-59-111 [repealed].

11-7-211. Authority to arrest violators or clear mine — Injunctive relief for owner.

  1. The State Mine Inspector is empowered concurrently with the sheriffs and constables throughout the state to make arrests for any violations of the mining laws of this state, but he or she shall make no arrest until after notice has been given as provided in this act.
    1. Where, in the opinion of the mine inspector, there is imminent danger to the life or health of the miners or employees in the mine, the mine inspector shall at once notify the person in charge of or operating the mine in which the dangerous condition exists to immediately remove the danger. On failure to remove the dangerous condition without unnecessary delay, the mine inspector shall order the mine or dangerous portion thereof cleared of all persons except those necessary to remove or remedy the dangerous condition.
    2. Upon the clearing of any mine of persons employed therein, as provided in this subsection, any owner, lessee, or agent in charge of or operating the mine may apply to the circuit court within whose jurisdiction the mine lies for a writ of injunction to enjoin the mine inspector from continuing the prevention of the operation of the mine. Whereupon, the judge of the court, either in term or vacation, shall at once proceed to hear and determine the case, and if the cause appears to be sufficient after hearing the parties and their evidence, as in like cases, the judge shall sustain or overrule the mine inspector.

History. Acts 1917, No. 130, § 5, p. 683; C. & M. Dig., § 7255; Pope's Dig., § 9311; A.S.A. 1947, § 52-409.

Meaning of “this act”. See note to § 11-7-201.

Subchapter 3 — Regulation of Operation

Publisher's Notes. Act 1939, No. 101, § 1, provided that all statutes in force prior to February 17, 1939, which regulated coal mines or fixed the duties and jurisdiction of the state mine inspector should apply to all coal mines and their operators, irrespective of the number of persons employed in the mine.

Cross References. Mechanics' and materialmen's liens on mines, § 18-44-101 et seq.

Safety of miners, Ark. Const., Art. 19, § 18.

Effective Dates. Acts 1893, No. 125, § 17: effective 90 days after passage.

Acts 1905, No. 225, § 19: effective 20 days after passage.

Acts 1919, No. 134, § 7: approved Feb. 27, 1919. Emergency clause provided: “That all laws and parts of laws in conflict herewith be and the same are hereby repealed, and this Act being necessary for the public peace, health and safety, an emergency is hereby declared, and this Act shall take effect and be in force from and after its passage.”

Acts 1919, No. 686, §§ 2, 3: effective on passage. Emergency declared. Approved Apr. 5, 1919.

Acts 1921, No. 100, § 3: effective 90 days after passage.

Acts 1927, No. 58, § 2: effective 90 days after passage. Became law without Governor's signature, Mar. 2, 1927.

Acts 1937, No. 116, § 7: approved Feb. 23, 1937. Emergency clause provided: “Many employees of coal mines being in constant fear of not receiving their wages, an emergency is declared to exist and this act, being necessary for the public peace, health and safety, shall be in full force from and after its passage.”

Acts 1949, No. 268, § 22: effective on passage and approval.

Acts 1957, No. 338, § 2: approved Mar. 27, 1957. Emergency clause provided: “Many employees of coal mines being in constant fear of not receiving their wages, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage.”

11-7-301. Penalty for endangering mine or miners.

  1. Any miner, workman, or other person who shall knowingly injure any water gauge, barometer, air course, or brattice or shall obstruct or throw open any airway, or carry any open flame lamp, or matches, into any mine or shall handle or disturb any part of the machinery of the hoisting engine or open a door to a mine, and not have the door closed again, whereby danger is produced, either to the mine or to those who work therein, who shall enter any part of the mine against caution, who shall disobey any order given in pursuance of this chapter, or who shall do any willful act whereby the lives and health of the persons working in the mine, or the security of the mine or miners or the machinery thereof is endangered, shall be deemed guilty of a misdemeanor.
  2. Upon conviction, the miner, worker, or other person shall be punished by a fine or imprisonment at the discretion of the court or jury hearing the case.

History. Acts 1893, No. 125, § 13, p. 213; C. & M. Dig., § 7270; Pope's Dig., § 9326; Acts 1949, No. 268, § 5; A.S.A. 1947, § 52-619.

11-7-302. Right of action for death or injury.

  1. For any injury to persons or property occasioned by willful violation of this chapter or willful failure to comply with any of its provisions, a right of action shall accrue to any party injured for any direct damages sustained thereby.
  2. Should death ensue from any injury, a cause of action shall survive in favor first of the widow and minor children of the deceased, and if there is no widow nor minor children, then in favor of the father, then the mother, and then the brothers and sisters and their descendants.

History. Acts 1893, No. 125, § 12, p. 213; 1905, No. 225, § 4, p. 567; C. & M. Dig., § 7269; Pope's Dig., § 9325; A.S.A. 1947, § 52-618.

Cross References. Liability for injuries to employees, fellow servant doctrine abolished, § 11-8-109.

11-7-303. Map or plan of mine.

    1. The owner, agent, or operator of each and every coal mine in this state shall make, or cause to be made, an accurate and correct map or plan of the entire workings of the mine and every vein or deposit thereof showing the general inclination of the strata, together with any material deflections in the workings and the boundary lines of the area belonging to the mine, and deposit a true copy of the map or plan with the clerk of the county court of the county wherein the mine or any part thereof may be located.
    2. The map or plan shall be so deposited during the period from January 1 to June 1 of each and every year, and the owner, agent, or operator shall furnish the clerk and State Mine Inspector with a sworn statement and further map or plan of the progress of the workings of the mine from the date of the last survey reported up to the making of same, and the mine inspector shall correct his or her map or plan in accordance therewith.
    3. When any mine is worked out or abandoned, that fact shall be reported to the mine inspector without delay, and the map or plan in the office of the clerk aforesaid shall be corrected and verified to conform to the facts then existing.
    4. All mine maps or plans must show the location of doors, overcast or air bridges, and the direction that all air currents are traveling shall be indicated by arrows.
    5. The clerk of the county court of the county in which mines are located shall file and safely keep all maps or plans of any mine, deposited in his or her office, and they shall be recorded as maps and plans of town sites are now recorded.
  1. The mine inspector shall send maps and plans of mines in his or her possession to the Secretary of State for safekeeping at the end of every two (2) years, during the month of July. The mine maps and plans shall be kept in a vault for this special purpose for the guidance of anyone interested therein.
    1. The owner, agent, or operator of any mine neglecting, failing, or refusing to furnish the mine inspector and county clerk a statement, map, or plan or addition thereto at the time and in the manner provided in subsection (a) of this section shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum not less than one hundred dollars ($100), nor more than five hundred dollars ($500).
    2. Each day that the neglect, failure, or refusal continues shall constitute a separate offense.
    3. This penalty shall be in addition to the rights conferred upon the mine inspector by law to have the maps or plans made at the expense of the owner, agent, or operator.
  2. Whenever the owner, agent, or operator of any mine shall neglect, fail, or refuse to furnish the mine inspector and clerk, as provided in subsection (a) of this section, with a statement, map, or plan or additions thereto, at the time and in the manner therein provided, the mine inspector is authorized to cause an accurate map or plan of the workings of the mine to be made at the expense of the owner, agent, or operator, and the cost thereof may be recovered by the mine inspector from the owner, agent, or operator.

History. Acts 1893, No. 125, §§ 1, 2, p. 213; 1905, No. 225, § 1, p. 567; C. & M. Dig., §§ 7260, 7261; Acts 1921, No. 100, § 1; 1927, No. 58, § 1; Pope's Dig., §§ 9316, 9317; A.S.A. 1947, §§ 52-601, 52-602.

Publisher's Notes. Acts 1921, No. 100, § 2, provided that the act would not be construed as repealing any law then in effect except where the law was in direct conflict with the act, and the act would be cumulative to existing laws regulating mines.

11-7-304. Mine openings and escapeways.

    1. Every underground mine shall have at least two (2) separate surface openings.
    2. Main slope and drift openings shall be separated by at least twenty-five feet (25') of natural ground in all mines opened after June 9, 1949.
    3. New shafts and partitions therein, made after June 9, 1949, shall be fireproof.
    4. Buntons and guides may be of wood.
    5. Mine openings at isolated locations, where there is danger of fire entering the mine, shall have adequate protection against surface fires entering the mine.
  1. Not more than twenty (20) persons shall be allowed at any one (1) time in the mine until a connection has been made between the two (2) mine openings, and work shall be prosecuted with reasonable diligence. When only one (1) opening is available, owing to final mining of pillars, not more than twenty (20) persons shall be allowed in the mine at any one (1) time.
    1. There shall be at least two (2) travelable passageways, to be designated as “escapeways”, from each working section to the surface, whether the mine openings are shafts, slopes, or drift. These shall be kept in safe condition for travel and reasonably free from standing water and other obstructions.
    2. One (1) of the designated escapeways may be the haulage road.
    3. One (1) of the escapeways must be ventilated with intake air.
    4. At mines now operating with only one (1) free passageway to the surface, immediate action shall be taken to provide a second passageway.
    1. Where the designated escapeways are shafts, they shall be equipped with hoist and cage or with travelable stairways or ladders.
    2. No shaft more than thirty feet (30') deep, sunk after June 9, 1949, shall be equipped with ladders.
      1. Stairways shall be of substantial construction, set at an angle not greater than forty-five degrees (45°) with the horizontal, and equipped on at least one (1) side with a suitable handrail.
      2. Landing platforms shall be at least two feet (2') wide and four feet (4') long and shall be railed properly.
    3. Ladders shall be anchored securely.
    4. Where ladders or stairways set at an angle greater than forty-five degrees (45°) are now installed, their use may be continued, provided that they are of substantial construction, with platforms at intervals of not more than thirty feet (30') and equipped with a handrail in the case of stairways.
    1. If a designated escapeway is a slope of not more than forty-five degrees (45°), it shall be equipped with a stairway or adequate walkway with cleats.
    2. If the slope is more than forty-five degrees (45°), stairways shall be installed.
  2. Direction signs shall be posted conspicuously to indicate manways and designated escapeways.
  3. Good housekeeping shall be practiced underground.

History. Acts 1893, No. 125, § 3, p. 213; C. & M. Dig., § 7262; Pope's Dig., § 9318; Acts 1949, No. 268, § 1; A.S.A. 1947, § 52-603.

11-7-305. Ventilation generally.

  1. The owner, agent, or operator of every mine, whether operated by shaft, slope, or drift, shall provide and maintain for every mine a sufficient amount of ventilation, to be determined by the State Mine Inspector, not less than two hundred cubic feet (200 cu. ft.) of air per man per minute, measured at the foot of the downcast, which shall be circulated to the face of every working place throughout the mine, so that the mine shall be free of standing gas of whatsoever kind.
  2. In all mines where firedamp is generated, every working place where firedamp is known to exist shall be examined every morning with a safety lamp by a competent person before any other persons are allowed to enter.
  3. The ventilation required by this section may be produced by any suitable appliances.

History. Acts 1893, No. 125, § 4, p. 213; C. & M. Dig., § 7263; Pope's Dig., § 9319; Acts 1949, No. 268, § 2; A.S.A. 1947, § 52-604.

Case Notes

Purpose.

This section contemplates that the air shall be carried to the extremest point where the pick falls, and that the entire mine shall be free of gas. Western Coal & Mining Co. v. Jones, 75 Ark. 76, 87 S.W. 440 (1905).

11-7-306. Regulation of air currents.

  1. Air regulation of all slopes, drifts, or shafts used for hoisting or hauling coal shall be made at the intake of air into the mine, except at the option of the owner or by direction of the State Mine Inspector, and all air that goes into the mine shall be so split that not more than fifty (50) employees will be working on each split of air, and not less than two hundred cubic feet (200 cu. ft.) of air per person shall pass each working face per minute, and the air shall be sufficient to dilute all noxious or explosive gases.
  2. It shall be the duty of the mine inspector to measure the air at all working faces in making his or her inspection.
  3. The machinery and appliances used for conducting or driving the air into the mines shall be so installed, arranged, and adjusted that the air currents may be easily and speedily reversed in emergencies.

History. Acts 1905, No. 225, § 17, p. 567; 1919, No. 686, § 1; C. & M. Dig., § 7284; Pope's Dig., § 9340; Acts 1949, No. 268, § 8; A.S.A. 1947, § 52-605; Acts 2019, No. 382, § 1.

Amendments. The 2019 amendment substituted “per person” for “per man” in (a).

Case Notes

Negligence.

Negligence of a mining company which permitted a pumper to remain at work after a fan was turned off in violation of this section was held a question for the jury in an action for an employee's death by gas explosion. Midland Coal Mining Co. v. Rodden, 184 Ark. 157, 41 S.W.2d 777 (1931).

Noncompliance.

Noncompliance with this section will not be excused upon the ground that it was not practical to comply. Central Coal & Coke Co. v. Barnes, 149 Ark. 533, 233 S.W. 683 (1921).

11-7-307. Manner of working room and pillar plan mine.

  1. The owner, agent, lessee, or operator of any coal mine in this state, if the mine is worked on the room and pillar plan, shall cause the work to be prosecuted in the mine in the following manner:
    1. Two (2) entries parallel with each other must be driven for the ingress and egress of the air, and crosscuts must be made at intervals not to exceed forty feet (40') apart;
    2. Where gas exists the crosscuts shall be driven thirty feet (30') apart or a crosscut shall be made at any other place ordered by the management;
    3. No room shall be turned inside the last course cut.
    1. The State Mine Inspector shall give notice in writing to the owner, agent, lessee, or operator in charge of each coal mine worked on the room and pillar plan, to conform to the requirements set out in subsection (a) of this section.
    2. If the requirements are not complied with in the mines, then the owner, agent, lessee, or operator so failing shall be deemed guilty of a misdemeanor and on conviction shall be fined not less than ten dollars ($10.00) nor more than fifty dollars ($50.00) for each day in which the mine is operated in violation of the above requirements.

History. Acts 1905, No. 225, §§ 7, 8, p. 567; C. & M. Dig., §§ 7277, 7278; Pope's Dig., §§ 9333, 9334; A.S.A. 1947, §§ 52-607, 52-608.

11-7-308. Bore holes.

The owner, agent, or operator shall provide that a bore hole shall be kept twenty feet (20') in advance of the face of each and every working face and at a forty-five degree (45°) angle at intervals of eight feet (8') on each rib of the working face when driving toward an abandoned mine or parts of a mine suspected of containing inflammable gases or of being inundated with water.

History. Acts 1893, No. 125, § 5, p. 213; C. & M. Dig., § 7264; Pope's Dig., § 9320; Acts 1949, No. 268, § 3; A.S.A. 1947, § 52-606.

11-7-309. Means of signaling — Cages.

  1. The owner, agent, or operator of every mine operated by shaft shall provide suitable means for signaling between the bottom and top thereof.
    1. He or she shall also provide safe means of hoisting and lowering persons in a cage covered with boiler iron, so as to keep safe, as far as possible, persons descending into or ascending out of the mine.
    2. The cages shall be furnished with guides to conduct it through slides through the shaft with a sufficient brake on every drum to prevent accident in case of the giving out or breaking of the machinery.
    3. The cage shall be furnished with spring catches, intended and provided so far as possible to prevent the consequences of cable breaking or the loosening or disconnecting of the machinery.
    4. No props or rails shall be lowered in a cage in every case while men are descending into or ascending out of the mine.
    5. When men are ascending or descending, the opposite cage in every case shall be empty.
    6. No owner, agent, or operator of any coal mine operated by a shaft or slope shall place in charge of any engine whereby men are lowered into or hoisted out of the mines anyone but an experienced, competent, and sober person not under eighteen (18) years of age.
    7. No person shall be permitted to ride upon a loaded cage or wagon used for hoisting purposes in any shaft or slope, except persons employed for that purpose.
    8. In no case shall any coal be hoisted out of any mine while any person or persons are descending into the mine.
    9. In no case shall more than one (1) member of the same family ascend or descend on a cage.
    10. No more than eight (8) persons shall ascend out of or descend into any mine on one (1) cage at one (1) time, nor shall they be lowered or hoisted more rapidly than five hundred feet (500') to the minute.

History. Acts 1893, No. 125, §§ 6, 7, p. 213; C. & M. Dig., §§ 7265, 7266; Pope's Dig., §§ 9321, 9322; Acts 1949, No. 268, § 4; A.S.A. 1947, §§ 52-611, 52-612.

11-7-310. Gates, bonnets, and other safety measures.

  1. The owner, agent, or operator shall cause every landing on a level or above the surface of the ground and the entrance to each intermediate vein to be securely fenced by a gate and a bonnet so prepared to cover and protect the shaft and the entrances thereto.
  2. The entrance to every abandoned slope, air, or other shaft shall be securely fenced off.
  3. Every steam boiler shall be provided with proper steam gauge, water gauge, and safety valve.
  4. All underground self-acting or engine plains or gangways on which cars are drawn and persons allowed to travel shall be provided with some proper means of signaling between stopping places, and the end of the plains and gangways and sufficient places of refuge at the side of the plains or gangways shall be provided at intervals of not more than thirty feet (30') apart.

History. Acts 1893, No. 125, § 8, p. 213; C. & M. Dig., § 7267; Pope's Dig., § 9323; A.S.A. 1947, § 52-613.

11-7-311. Prop timbers.

The owner, agent, or operator of any mine shall keep a sufficient amount of timber when required to be used as props, so that workmen can at all times be able to properly secure the workings from caving in. It shall be the duty of the owner, agent, or operator to send down all props when required and deliver the props to the place where cars are delivered. Timbering shall be done in a safe and workmanlike manner.

History. Acts 1893, No. 125, § 14, p. 213; C. & M. Dig., § 7271; Pope's Dig., § 9327; Acts 1949, No. 268, § 6; A.S.A. 1947, § 52-614.

Case Notes

Construction.

The word “required” means requested or demanded. Mama Coal Co. v. Colo, 158 Ark. 408, 250 S.W. 327 (1923).

Agents.

Where a mine owner delegated the statutory duty to furnish props when requested, it is responsible for a failure resulting from the negligence of the agent chosen by it to perform the duty. Mama Coal Co. v. Colo, 158 Ark. 408, 250 S.W. 327 (1923).

Defenses.

Assumed risk and contributory negligence were not available defenses in actions under this section. Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S.W. 722 (1908); Western Coal & Mining Co. v. Watts, 131 Ark. 562, 199 S.W. 921 (1917); Southern Anthracite Coal Mining Co. v. Rice, 156 Ark. 94, 245 S.W. 805 (1922); Brown v. Hames, 207 Ark. 196, 179 S.W.2d 689 (1944).

Jury Question.

It is a question for the jury whether the necessary props were requested and whether the mine operator's failure to supply props was proximate cause of injury. Western Coal & Mining Co. v. Watts, 131 Ark. 562, 199 S.W. 921 (1917).

Pleading.

Allegation that company failed to furnish props when requested states a cause of action under this section. New Union Coal Co. v. Walker, 182 Ark. 460, 31 S.W.2d 753 (1930).

Unavailability.

Unavailability of timbers was tantamount to a refusal to comply with demand by miner for timbers, since it was the company's duty to have them. Brown v. Hames, 207 Ark. 196, 179 S.W.2d 689 (1944).

11-7-312. Medical and emergency supplies.

  1. There shall be kept in the engine room or at some nearby and convenient place at each mine a supply of oils, bandages, blankets or covers for wraps, and a cot or stretcher for the use of and to be used by persons who may receive injuries in or at the mines.
  2. The agent, owner, lessee, or operator shall also provide and maintain at some convenient place a conveyance in which to take from the mines to their place of abode persons who may be injured.

History. Acts 1905, No. 225, § 12, p. 567; C. & M. Dig., § 7281; Pope's Dig., § 9337; A.S.A. 1947, § 52-615.

11-7-313. Washroom and lockers.

  1. It shall be the duty of every owner or lessee, its officers and agents, or other persons having jurisdiction or direction of any coal mine within the State of Arkansas to provide a suitable building which shall be convenient to the principal entrance of the mine and equipped with individual lockers or hangers, benches or seats, proper light, heat, hot and cold water, and shower baths, and maintain them in good order for the use and benefit of all persons employed in or about the mine.
    1. The building shall be constructed so as to give sufficient floor space for the accommodation of miners or others using it.
    2. The flooring in the washroom of the building is to be made of concrete or cement, but the material used in flooring the changing room shall be optional with the owner, lessee, or person operating or directing the operation of the mine.
      1. All lockers required by this section, when made of steel, shall be not less than twelve inches (12") in width, twelve inches (12") in depth, and sixty inches (60") in height.
      2. When the lockers are made of lumber, they shall not be less than twelve inches (12") in depth, twelve inches (12") in width, and sixty inches (60") in height, with partitions in the center.
    3. Individual hangers shall consist of not less than three (3) suitable hooks upon which to hang clothing and a receptacle of suitable size for use in connection therewith, attached to a proper chain or wire rope, and suspended so as to admit of the hanger being raised to such height that the wearing apparel, when hung thereon, will not be less than seven feet (7') above the floor of the building and capable of being locked in that position.
    4. The lockers or hangers in each washhouse shall be sufficient in number to accommodate all employees of the mine or mines, and there shall be one (1) shower bath for each fifteen (15) employees.
  2. The employees shall furnish their own towels, soap, and lock for their lockers or hangers and shall exercise control over and be responsible for the property by them left therein.
  3. It shall be the duty of all persons using the washhouses to remove therefrom all cast-off wearing apparel.
  4. Every corporation, company, partnership, or person, who or which shall construct any building required by subsections (a)-(d) of this section and shall install the washhouse and washhouse facilities as required therein, shall at all times during the operation of any mine keep them in a clean and sanitary condition but shall not be liable for the loss or destruction of any property of employees left in the building.
  5. It shall be the duty of the State Mine Inspector, and he or she is by this section authorized, to require washhouses already in existence to be so changed, remodeled, and improved as to comply with the provisions of this section. He or she shall have general supervision of this chapter and its enforcement.
    1. Any owner or lessee, its officers or agents, or other person or persons failing or refusing to comply with the provisions of this section shall be deemed guilty of a misdemeanor and shall, upon conviction, be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100).
    2. Each day's violation shall constitute a separate offense and shall be punished as such.
    1. It shall be unlawful for any person to break, injure, or destroy any part or appurtenance to any washhouse or commit any nuisance therein.
    2. Any person adjudged guilty of a violation of this subsection shall be fined in any sum not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00).

History. Acts 1919, No. 134, §§ 1-4, 6; C. & M. Dig., §§ 7287-7290, 7292; Pope's Dig., §§ 9343-9346, 9348; A.S.A. 1947, §§ 52-621—52-624, 52-626.

11-7-314. Use of water on cutter bars and jackhammers required.

  1. In order to promote safety in coal mines by eliminating the hazards of coal and rock dust in coal mines, it is made the duty of every person, partnership, association, corporation, owner, operator, or lessee of any coal mine in this state to employ and use water on the cutter bars of all mining machines while cutting rock or coal in the mines and on all jackhammer drills while drilling in the mines in either coal or rock.
  2. Any person, partnership, association, corporation, owner, operator, or lessee of any coal mine in this state who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined in any sum not less than fifty dollars ($50.00) nor more than five hundred dollars ($500). Each separate instance of the violation of this section, either by the cutting machines or the jackhammers, shall be deemed a separate offense.
  3. It is also made unlawful for any person, miner, operator of a jackhammer drill, or machine runner to operate either a mining machine without water on the cutter bar or a jackhammer drill contrary to the provisions of this section. Any person so doing shall be guilty of a misdemeanor and, upon conviction, shall be fined in any sum not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100). Each separate operation shall constitute a separate offense.

History. Acts 1947, No. 139, §§ 1-3; A.S.A. 1947, §§ 52-627—52-629.

11-7-315. Daily inspection by fire boss.

  1. In all mines where a fire boss is employed, all working places and worked-out places adjacent to working places shall be examined, when it can be done, at least once a day by a competent fire boss. It shall be his or her duty to enter a report of existing conditions of the working places and worked-out places in a well-bound book to be kept by him or her for that purpose.
  2. All dangerous places that are marked out shall be marked on a blackboard, furnished by the company, before any other employee enters the mine.

History. Acts 1905, No. 225, § 10, p. 567; C. & M. Dig., § 7279; Pope's Dig., § 9335; A.S.A. 1947, § 52-609.

Case Notes

Cited: Central Coal & Coke Co. v. Barnes, 149 Ark. 533, 233 S.W. 683 (1921).

11-7-316. High water danger.

  1. Whenever and wherever a coal mine in this state becomes dangerous from high water or overflow of streams adjacent thereto, whereby the lives of miners employed therein are jeopardized by reason of the high water, it shall be the duty of the managers of the coal mine to call the miners out of the mine and forbid their working therein until the danger is past.
    1. Failure to act as required in subsection (a) of this section is made a misdemeanor.
    2. Upon conviction, the manager shall be fined in any sum not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) or imprisoned not less than six (6) months nor more than one (1) year.

History. Acts 1905, No. 225, § 18, p. 567; C. & M. Dig., § 7285; Pope's Dig., § 9341; A.S.A. 1947, § 52-616.

11-7-317. Reports of accidents.

  1. Whenever loss of life or serious personal injury shall occur by reason of any explosion or of any accident whatever in or about any mine, it shall be the duty of the person having charge of the mine to report the facts thereof without delay to the State Mine Inspector and, if any person is killed thereby, to notify the coroner or some justice of the peace of the county.
    1. It shall be the duty of the mine inspector to investigate and ascertain the cause of the explosion and file a report thereof with the other records of his or her office.
    2. To enable him or her to make the investigations, he or she shall have power to compel attendance of witnesses, take depositions, and administer oaths, and the cost of the examination shall be paid by the county as costs of coroners' inquests are now paid.
  2. Failure of the person in charge of the mine where the accident occurred to give the mine inspector notice thereof shall be a misdemeanor.

History. Acts 1893, No. 125, § 9, p. 213; C. & M. Dig., § 7268; Pope's Dig., § 9324; A.S.A. 1947, § 52-617.

11-7-318. Age of miners.

No person under the age of eighteen (18) years shall be permitted to enter any mine to work therein.

History. Acts 1893, No. 125, § 7, p. 213; C. & M. Dig., § 7266; Pope's Dig., § 9322; Acts 1949, No. 268, § 4; A.S.A. 1947, § 52-612; 2005, No. 442, § 1.

Cross References. Certain kinds of employment of children under 16 prohibited, § 11-6-106.

11-7-319. Bond for semimonthly payment of wages.

    1. Every person, firm, association, or corporation engaged in mining or producing coal or in the operation of a coal mine or coal mining business and employing more than three (3) persons in connection therewith shall give a qualified bond with good and sufficient surety to the State of Arkansas, for the use and benefit of the employees, conditioned to the effect that the employer will pay to the employees semimonthly the full amount that shall be due the employees on each semimonthly payday, as defined in this section.
    2. The bond shall be in the amount as scheduled in this subsection, based upon the number of employees of any coal mine for which the bond is made, as follows:
      1. Where the number of employees is not less than three (3) but less than twelve (12), the bond shall be two thousand five hundred dollars ($2,500);
      2. Where the number of employees is not less than twelve (12) but less than fifty (50), the bond shall be eight thousand dollars ($8,000);
      3. Where the number of employees is not less than fifty (50) but less than one hundred fifty (150), the amount of the bond shall be ten thousand dollars ($10,000);
      4. Where the number of employees is not less than one hundred fifty (150) but less than three hundred (300), the amount of the bond shall be fifteen thousand dollars ($15,000);
      5. Where the number of employees is three hundred (300) or more, the amount of the bond shall be twenty thousand dollars ($20,000).
    3. In the event any one (1) person, firm, association, or corporation shall operate more than one (1) coal mine, a separate bond shall be given for the benefit of the employees in each mine.
    4. The bond shall be filed with the clerk of the circuit court and shall be approved by the circuit court of the county where the labor, to secure the payment of which the bond is given, shall be performed.
      1. In the event of variance in the number of employees, or when any bond shall not conform with the above schedule, any employee or interested person may, upon showing to the circuit court, have the court declare the number of employees of the employer in any mine, and thereupon, the court shall fix the amount of bond required by appropriate order.
      2. Any interested person may appeal the order in the manner now provided by law.
    5. The bond shall secure claims for labor only, including assignees of claims for labor and those who have advanced any money or thing of value to any employee on the order of his employer.
      1. Any employee or group of employees, who shall not be paid their wages when due, may proceed against the principal and sureties on the bond in an action in the circuit court of the county where the mine at which the labor was performed is situated, and for this purpose the mine shall be deemed to be situated at the place where its principal opening is situated.
      2. Any employees in the same mine may join in one (1) action, and process in the action shall run throughout the state.
    1. In an action brought to recover on the bond, the court shall assess a reasonable attorney's fee for the attorney for the plaintiff if the plaintiff prevails therein, the fee to be adjudged as costs against the principal and sureties in the bond.
    2. No wages shall be deemed to be due for labor performed during the first half of any month until the first weekday of the following month and for labor performed during the last half of any month until the sixteenth day of the following month, and any action to recover on the bond must be commenced within thirty (30) days from the date of default in the payment of wages when due.
    1. Any person, firm, association, or corporation who shall fail or refuse to comply with the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each violation.
    2. When any person, firm, or corporation shall fail or refuse to comply herewith, the State Mine Inspector or any interested person may apply to the circuit court having jurisdiction pursuant to subdivision (a)(4) of this section for an order enjoining and preventing the operation of any mine, by anyone, until this section is complied with, and upon proper showing, the order shall be made by the circuit court.
    3. The mine inspector, in his or her official capacity, shall not be required to give bond to obtain the order.
    4. Any regularly constituted labor union of mining laborers shall be deemed an interested person within the meaning of this section.
  1. This section shall not prevent the enforcement of any remedies now provided for laborers to enforce payment of their wages but shall be cumulative thereto; provided, the remedy here provided must be exhausted before any other remedy may be invoked.

History. Acts 1937, No. 116, § 1; Pope's Dig., §§ 8543-8548; Acts 1939, No. 193, §§ 1, 2; 1957, No. 338, § 1; A.S.A. 1947, §§ 52-630, 52-631.

Case Notes

Cited: Bates Coal and Mining Co. v. Mannon, 205 Ark. 215, 168 S.W.2d 408 (1943).

Subchapter 4 — Employee Certification

Publisher's Notes. The Coal Mine Examining Board, referred to throughout this subchapter, has been abolished and its powers transferred to the Director of the Department of Labor. See Publisher's Notes, § 11-7-401.

Effective Dates. Acts 1919, No. 486, § 10: May 1, 1919.

Acts 1949, No. 268, § 22: effective on passage and approval.

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Ark. L. Rev.

Administrative License Revocation in Arkansas, 14 Ark. L. Rev. 139.

11-7-401. [Repealed.]

Publisher's Notes. This section, concerning Coal Mine Examining Board members, organization, and proceedings, was repealed by Acts 2017, No. 266, § 1. The section was derived from Acts 1919, No. 486, §§ 1, 2; C. & M. Dig., §§ 7317, 7318; Pope's Dig., §§ 9373, 9374; A.S.A. 1947,§§ 52-501, 52-502; Acts 1997, No. 250, § 59.

11-7-402. Director of the Division of Labor — Power to administer oaths.

  1. To more effectively carry out the intentions and purposes of this section and §§ 11-7-409 — 11-7-414, the Director of the Division of Labor may administer oaths to all persons who are applicants, or who may vouch, in any manner, for the previous service or qualifications of an applicant to obtain for him or her a certificate under this section and §§ 11-7-409 — 11-7-414.
  2. A person who falsely testifies or swears to any matter material to the examination or to the service or qualification of an applicant is guilty of perjury.

History. Acts 1949, No. 268, § 17; A.S.A. 1947, § 52-517; Acts 2017, No. 266, § 2; 2019, No. 910, § 5347.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment substituted “Director of the Department of Labor” for “Coal Mine Examining Board” in the section heading; in (a), substituted “To” for “In order to”, “the Director of the Department of Labor may administer oaths to all” for “members of the Coal Mine Examining Board shall have the power to administer oaths to any and all”, “an applicant” for “any applicant in order”, and “under” for “pursuant to”; and, in (b), substituted “A person who falsely testifies or swears” for “Any person who shall falsely testify or swear”, “the” for “such” preceding “examination”, and “an applicant is guilty of perjury” for “any applicant shall be deemed guilty of perjury and upon conviction shall be subject to the penalties prescribed by the laws of the State of Arkansas against those who commit perjury”.

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Cross References. Perjury, § 5-53-101 et seq.

11-7-403. Fire bosses, mine foremen, etc. — Examination — Qualifications.

  1. No fire bosses, hoisting engineers, or mine foremen shall be employed in any mine in the State of Arkansas unless they have been examined by the Division of Labor or the division determines that comparable testing criteria have been met in another jurisdiction.
  2. No one shall act as State Mine Inspector or Assistant State Mine Inspector unless he or she has been examined by the division, as provided in this section.
  3. Applicants for examination shall be able to read and write the English language and shall satisfy the division that they are of good moral character and are not users of intoxicating liquors and are citizens of the United States.
  4. All applicants shall be thoroughly examined with reference to the duties of the positions for which they have applied for a certificate.
    1. Applicants for certificates as mine foremen shall be at least twenty-five (25) years old and shall have had at least five (5) years' experience as practical coal miners, mining engineers, or persons of general underground experience.
    2. Applicants for certificates as fire bosses shall have like qualifications and experience in the mines of Arkansas or elsewhere and shall also have had experience in mines that generate explosive and noxious gases.
    1. Applicants for certificates as mine inspector shall, before examination, pay to the division a fee of four dollars ($4.00) and, if successful, a further fee of six dollars ($6.00) for a certificate.
    2. Applicants for certificates as assistant mine inspector shall, before examination, pay to the division a fee of three dollars ($3.00) and, if successful, a further fee of four dollars and fifty cents ($4.50) for a certificate.
    3. Applicants for certificates as mine foremen and hoisting engineers shall, before examination, pay to the division a fee of two dollars ($2.00) and, if successful, a further fee of three dollars ($3.00) for a certificate.
    4. Other applicants shall, before examination, pay to the division of examiners a fee of one dollar ($1.00) and, if successful, a further fee of two dollars ($2.00) for a certificate.

History. Acts 1919, No. 486, § 3; C. & M. Dig., § 7319; Pope's Dig., § 9375; A.S.A. 1947, § 52-503; Acts 2003, No. 358, § 1; 2019, No. 910, §§ 5348, 5349.

A.C.R.C. Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2019 amendment substituted “Division of Labor” for “Department of Labor” in (a); and substituted “division” for “department” throughout the section.

11-7-404. Fire bosses, mine foremen, etc. — Certificate — Grades.

    1. The Director of the Division of Labor shall grant certificates after examination by the Division of Labor or a determination by the division that the testing requirements have been satisfied in another jurisdiction.
    2. The certificates shall be granted to all applicants who through these testing procedures have shown themselves to be familiar with the duties of the position for which they desire certificates and are capable of performing the duties.
    3. Certificates of the first grade shall be granted only to applicants who by oral or written examinations in the presence of and relating to explosive gas have shown themselves competent to act as mine foremen in mines which generate explosive and noxious gases, and the certificate shall so state.
    4. Certificates for mine inspector and assistant mine inspector shall be granted only to applicants who have shown themselves duly qualified, as provided by the law creating the office, and no appointments shall be made to these offices unless the appointee shall hold a certificate.
    1. Anyone holding a first grade foreman's certificate may serve as a foreman in any mine and may serve as fire boss.
    2. Anyone holding a second grade mine foreman's certificate may serve as any of the above, except as fire boss and foreman in mines which generate explosive or noxious gases.
      1. In case of emergency, a mine owner, with consent of the director, may employ a trustworthy or experienced man or woman who does not possess a certificate, for a period of not more than thirty (30) days as mine foreman or fire boss.
      2. If the holder of a permit fails to qualify after thirty (30) days, his or her permit shall be revoked.

History. Acts 1919, No. 486, §§ 4, 5; C. & M. Dig., §§ 7320, 7321; Pope's Dig., §§ 9376, 9377; Acts 1949, No. 268, § 9; A.S.A. 1947, §§ 52-504, 52-505; Acts 2003, No. 358, § 2; 2017, No. 266, § 3; 2019, No. 910, § 5350.

A.C.R.C. Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment redesignated (b)(3) as (b)(3)(A) and (b)(3)(B); in (b)(3)(A), substituted “a mine owner, with consent of the director, may employ a” for “any mine owner, with consent of the Coal Mine Examining Board, may employ any”, and “does not” for “shall not”; and, in (b)(3)(B), substituted “If” for “In the event that”.

The 2019 amendment, in (a)(1), substituted “Director of the Division of Labor” for “Director of the Department of Labor”, “Division of Labor” for “Department of Labor”, and “division” for “department”.

11-7-405. Fire bosses, mine foremen, etc. — Duplicate certificate.

In case of loss or destruction of a certificate, the Director of the Division of Labor, upon satisfactory proof of the loss or destruction, may issue a duplicate on the payment of the sum of one dollar ($1.00).

History. Acts 1919, No. 486, § 7; C. & M. Dig., § 7323; Pope's Dig., § 9379; A.S.A. 1947, § 52-507; Acts 2017, No. 266, § 4; 2019, No. 910, § 5351.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment substituted “Director of the Department of Labor” for “secretary of the examining board”.

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

11-7-406. Fire bosses, mine foremen, etc. — Revocation of certificate.

  1. All certificates issued pursuant to this subchapter may be revoked by the Director of the Division of Labor after a hearing upon due notice to the holder of the certificate and upon written charges preferred by the director or by some interested person for violation of this section and §§ 11-7-403 — 11-7-405 and 11-7-407.
    1. A complaint may be filed against the holder of a certificate for intoxication, mental disabilities, neglect of duty, or other sufficient cause.
    2. The holder of the certificate so cancelled shall have the right to appear before the director after the expiration of three (3) months and be reexamined if he or she shall first satisfy the director that the incapacity complained of has ceased to exist.

History. Acts 1919, No. 486, § 8; C. & M. Dig., § 7324; Pope's Dig., § 9380; A.S.A. 1947, § 52-508; Acts 2017, No. 266, § 5; 2019, No. 910, § 5352.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment, in (a), substituted “Director of the Department of Labor” for “board of examiners”, “director” for “board”, and “this section and §§ 11-7-40311-7-405 and 11-7-407” for “§§ 11-7-401 and 11-7-40311-7-407”; and, in (b)(2), substituted “director” for “examining board”, inserted “or she”, substituted “director” for “board” following “satisfy the”, and substituted “has” for “shall have” preceding “ceased”.

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

11-7-407. Fire bosses, mine foremen, etc. — Misrepresentation of certificate.

Any person who shall forge, alter, or counterfeit a certificate, shall secure or attempt to secure employment by use of the forged, altered, or counterfeited certificate, or shall falsely represent that he is a holder of a certificate regularly issued him shall be guilty of a misdemeanor.

History. Acts 1919, No. 486, § 6; C. & M. Dig., § 7322; Pope's Dig., § 9378; A.S.A. 1947, § 52-506.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

11-7-408. Penalty for violation of § 11-7-401 and §§ 11-7-403 — 11-7-407.

  1. Any owner, operator, lessee, or agent of any coal mine in the State of Arkansas violating any of the provisions of § 11-7-401 and §§ 11-7-403 — 11-7-407 shall be deemed guilty of a misdemeanor.
  2. Upon conviction, he or she shall be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100) or be imprisoned in the county jail not exceeding one (1) year, or both.

History. Acts 1919, No. 486, § 9; C. & M. Dig., § 7325; Pope's Dig., § 9381; A.S.A. 1947, § 52-509.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

11-7-409. Coal miners — Definition.

  1. The term “coal miner” as used in §§ 11-7-402 and 11-7-410 — 11-7-414, unless the context otherwise requires, shall be construed to mean any person working underground or in development in shafts, slopes, drifts, or tunnels for the extraction or production of coal or rock.
  2. The term “coal miner” in strip pit operation is defined as only those employees engaged in the extraction of coal from the pit.

History. Acts 1949, No. 268, § 11; A.S.A. 1947, § 52-511.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

11-7-410. Coal miners — Certificate required.

  1. It shall be unlawful for any person to work as a coal miner in any coal mine in this state without first having a certificate of qualification and competency to do so from the Director of the Division of Labor, nor shall any person, firm, or corporation employ as a coal miner in his or her coal mine in the State of Arkansas any person who does not hold a certificate, nor shall any mine foreman, overseer, or superintendent permit or suffer any person to be employed under him or her, or in any coal mine under his or her charge or supervision, as a coal miner in this state, except as provided in this act, who does not hold a certificate of qualification.
  2. Any person, firm, or corporation who violates any of the provisions of this section or § 11-7-411 shall be deemed guilty of a misdemeanor and on conviction shall be fined in the sum of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) or by imprisonment for a term of not less than ten (10) days nor more than thirty (30) days, or by both such fine and imprisonment, at the discretion of the court or jury trying the case.

History. Acts 1949, No. 268, § 16; A.S.A. 1947, § 52-516; Acts 2017, No. 266, § 6; 2019, No. 910, § 5353.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment substituted “Director of the Department of Labor” for “Coal Mine Examining Board of this state” in (a).

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Meaning of “this act”. Acts 1949, No. 268, codified as §§ 11-7-207, 11-7-301, 11-7-304, 11-7-305, 11-7-306, 11-7-308, 11-7-309, 11-7-311, 11-7-318, 11-7-402, 11-7-404, 11-7-40911-7-414, 15-59-106 [repealed].

11-7-411. Coal miners — Examination — Qualifications — Certificates.

  1. The Director of the Division of Labor shall hold sufficient examinations each year in places to be determined by the director, which, in his or her opinion, will be most convenient to applicants desiring to engage in the business of coal mining.
  2. All examinations held by the director shall be conducted in the English language and shall be of a practical nature, so as to determine the competency and qualifications of each applicant.
  3. The director shall:
    1. Examine under oath all persons who apply for certificates, except those regularly employed in the State of Arkansas and exempted under § 11-7-409, as to their previous experience as coal miners; and
      1. Grant certificates of competency and qualification to such applicants as the director finds to be qualified.
      2. The certificate, when so issued, entitles the holder to be employed as, and to do the work of, a coal miner in this state.
    1. A certificate of competency and qualification shall not be issued or delivered to any person under this act, unless:
      1. He or she first produces evidence of having had not less than two (2) years of practical experience working as a coal miner or working with a coal miner; and
      2. He or she is competent to mine coal in the coal mines of this state.
    2. In no case shall the applicant be deemed competent or qualified under this act unless he or she appears in person before the director and orally answers correctly at least twelve (12) practical questions propounded to him or her by the director pertaining to requirements and qualifications of a practical coal miner.
  4. The director shall keep an accurate record of proceedings and meetings and in the record shall show a correct detailed account of the examination of each applicant with the questions asked and his or her answers, and the director shall keep the records open for the inspection of the parties in interest.
  5. A miner's certificate granted under this act is not transferable, and any effort to transfer the certificate shall be deemed a violation of this act.
  6. The certificate shall be issued and signed by the director.
    1. Each applicant for the certificate provided for under this section shall pay a fee of fifty cents (50¢) to the director at the time of making application and, if successful in the examination, shall pay an additional fee of fifty cents (50¢) for the certificate.
    2. All fees collected from applicants shall be paid into the Coal Mine Examining Fund and paid out of the fund as other moneys are paid out.

History. Acts 1949, No. 268, §§ 12-14; A.S.A. 1947, §§ 52-512—52-514; Acts 2017, No. 266, § 7; 2019, No. 910, § 5354.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment, substituted “Director of the Department of Labor” for “Coal Mine Examining Board of this state” in (a), “director” for “Coal Mine Examining Board” in the introductory language of (b), and “director” for “board” or “examining board” throughout the section; substituted “his or her” for “its” in (a); redesignated (c) as (c)(1), (c)(2)(A), and (c)(2)(B); in (c)(1), substituted “apply” for “may apply” and deleted “the provisions of” following “under”; in (c)(2)(A), substituted “Grant” for “shall grant” and “finds” for “may find”; substituted “entitles the holder” for “shall entitle the holder thereof” in (c)(2)(B); in the introductory language of (d)(1), substituted “A” for “No” and inserted “not” following “shall”; substituted “produces” for “shall produce” in (d)(1)(A); deleted “intelligently and” following “answers” in (d)(2); deleted “at each of its meetings” following “answers, and” in (e); in (f), substituted “A” for “No”, deleted “the provisions of” following “under”, and substituted “is not” for “shall be”; in (g), substituted “and signed by the director” for “only at meetings of the board, and the certificate shall not be legal unless signed by at least a majority of the members of the board”; substituted “under this section” for “herein” in (h)(1); and deleted “these” preceding “applicants” in (h)(2).

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Meaning of “this act”. See note to § 11-7-410.

11-7-412. Coal miners — Temporary permit — Grandfather clause.

  1. A person making application for a coal miner's certificate of competency and qualification shall be granted a temporary permit to work until such time as an examination is held by the Director of the Division of Labor and if, in the judgment of the director, he or she is so qualified.
  2. All fees collected from the applicants shall be paid into the Coal Mine Examining Fund and paid out of the fund as other moneys are paid out.

History. Acts 1949, No. 268, §§ 12, 13; A.S.A. 1947, §§ 52-512, 52-513; Acts 2017, No. 266, § 8; 2019, No. 910, § 5355.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment, in (a), substituted “Director of the Department of Labor and” for “board” and “director, he or she” for “board, he”; deleted (b); and redesignated former (c) as present (b).

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor” in (a).

Meaning of “this act”. See note to § 11-7-410.

11-7-413. Coal miners — Apprentices.

  1. Any certified miner may have one (1) person working with him or her and under his or her direction, in addition to any member of his or her immediate family, as an apprentice for the purpose of learning the business of coal mining and becoming qualified to obtain a certificate in conformity with the provisions of this act.
  2. Any apprentice shall first be regularly employed by the owner of the coal mine in the same manner as the other employees.

History. Acts 1949, No. 268, § 10; A.S.A. 1947, § 52-510.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Meaning of “this act”. See note to § 11-7-410.

11-7-414. Coal miners — Duplicate certificate — Revocation of certificate.

The Director of the Division of Labor shall possess powers to issue duplicate certificates and revoke certificates in all cases as provided in §§ 11-7-405 and 11-7-406.

History. Acts 1949, No. 268, § 15; A.S.A. 1947, § 52-515; Acts 2017, No. 266, § 9; 2019, No. 910, § 5356.

Publisher's Notes. Acts 1989, No. 536, § 2, abolished the Coal Mine Examining Board and transferred its powers, duties, and functions to the Director of the Department of Labor.

Amendments. The 2017 amendment substituted “Director of the Department of Labor” for “Coal Mining Examining Board”.

The 2019 amendment substituted “Director of the Division of Labor” for “Director of the Department of Labor”.

Chapter 8 Injury or Death of Employees Generally

Publisher's Notes. The provisions of this chapter may be superseded by the Workers' Compensation Law, § 11-9-101 et seq., with respect to employees covered by that chapter.

Effective Dates. Acts 1907, No. 69, § 2: effective on passage.

Acts 1913, No. 175, § 8: approved Mar. 13, 1913. Emergency clause provided: “This Act being necessary for the immediate preservation of the public peace, health and safety of the State, the same shall take effect and be in force from and after its passage.”

Acts 1917, No. 364, § 2: approved Mar. 24, 1917. Emergency declared.

Research References

ALR.

Employer's tort liability to worker for concealing workplace hazard or nature or extent of injury. 9 A.L.R.4th 778.

Employer's liability for injury to babysitter in home or similar premises, 29 A.L.R.4th 304.

State or local governmental unit's liability for injury to private highway construction worker based on its own negligence, 29 A.L.R.4th 1188.

Release by employee of employer from claims arising out of employment, duress by employer vitiating release. 30 A.L.R.4th 294.

Liability for injury or death resulting when object is manually brought into contact with, or close proximity to, electric line. 33 A.L.R.4th 809.

Liability of employer with regard to inherently dangerous work for injuries to employees of independent contractor. 34 A.L.R.4th 914.

Right of employee to injunction preventing employer from exposing employee to tobacco smoke, 37 A.L.R.4th 480.

Liability of employment agency for personal injury or property damage suffered by employer from acts of referred employee, or by employee from acts of referred employer, 41 A.L.R.4th 531.

Damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations. 47 A.L.R.4th 134.

Workers' compensation law as precluding employee's suit against employer for third person's criminal attack, 49 A.L.R.4th 926.

Willful, wanton, or reckless conduct of co-employee as ground of liability despite bar of workers' compensation, 57 A.L.R.4th 888.

Injuries incurred while traveling to and from work with employer's receipts, 63 A.L.R.4th 235.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits, 69 A.L.R.4th 131.

Dual Capacity Doctrine as basis for employee's recovery for medical malpractice from company medical personnel, 73 A.L.R.4th 115.

Federal Coal Mine Health and Safety Act, liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.

Liability of security services company to injured employee as beneficiary of security services contract between company and employer, 75 A.L.R.4th 836.

Third-party tort liability of corporate officer to injured workers, 76 A.L.R.4th 365.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injury to trunk or torso, or internal injuries, 48 A.L.R.5th 129.

Head or brain injuries, excessiveness or adequacy of damages awarded, 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages, 52 A.L.R.5th 1.

Setting aside arbitration award on ground of interest or bias of arbitrator - labor disputes, 66 A.L.R.5th 611.

Am. Jur. 27 Am. Jur. 2d, Emp. Relationship, § 248 et seq.

C.J.S. 30 C.J.S., Emp. Liab., § 1 et seq.

11-8-101. Definition.

The word “corporation” as used in §§ 11-8-10211-8-108, unless the context otherwise requires, shall include the receiver or other persons charged with the duty of the management and operation of the business of the corporation.

History. Acts 1913, No. 175, § 6; C. & M. Dig., § 7149; Pope's Dig., § 9135; A.S.A. 1947, § 81-1206.

11-8-102. Exception.

Sections 11-8-10111-8-108 shall not apply to railroad corporations and shall not amend nor repeal any part of §§ 23-12-50123-12-507.

History. Acts 1913, No. 175, § 8; C. & M. Dig., § 7150; Pope's Dig., § 9136; A.S.A. 1947, § 81-1208.

11-8-103. Corporations liable for injury or death resulting from negligence.

  1. Every corporation, except while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he or she is employed by the corporation.
  2. In case of death of the employee, the corporation shall be liable to his or her personal representative for the benefit of the surviving widow or spouse and children of the employee or, if no spouse or children exist, then to the employee's parents or, if none, then to the next of kin of the employee for the injury or death resulting in whole or in part from negligence of the corporation or from the negligence of any of the officers, agents, or employees of the corporation.

History. Acts 1913, No. 175, § 1; C. & M. Dig., § 7144; Pope's Dig., § 9130; A.S.A. 1947, § 81-1201.

Cross References. Actions for wrongful death, § 16-62-102.

Coal mining companies, liability, § 11-8-109.

Case Notes

Constitutionality.

This section is not unconstitutional as violating the 14th amendment to the federal Constitution. Postal Telegraph-Cable Co. v. White, 190 Ark. 365, 80 S.W.2d 633 (1935), appeal dismissed, 296 U.S. 534, 56 S. Ct. 102 (1935).

Construction.

This section was patterned after § 1 of the federal Employers' Liability Act; therefore, the construction given to the section of federal act will be given great weight in construing this section. Dicken v. Missouri P. R. Co., 188 Ark. 1035, 69 S.W.2d 277 (1934).

Instruction.

An instruction in the language of the section without hypothetical statements showing how it would be applicable to the facts developed in the case was erroneous and misleading. Arkansas Shortleaf Lumber Co. v. Wilkinson, 149 Ark. 270, 232 S.W. 8 (1920).

Interstate Commerce.

Although corporation was subject to the Wagner Act and similar acts, employee injured was not engaged in interstate commerce at the time of his injury. Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941).

11-8-104. Contributory negligence no bar to recovery.

  1. In all actions brought against any corporation under or by virtue of any of the provisions of §§ 11-8-101 — 11-8-108 to recover damages for personal injuries to an employee, or where the injuries have resulted in his or her death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury and not by the court in proportion to the amount of negligence attributable to the employee.
  2. However, no employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by the corporation of any statute enacted for the safety of employees contributed to the injury or death of the employee.

History. Acts 1913, No. 175, § 2; C. & M. Dig., § 7145; Pope's Dig., § 9131; A.S.A. 1947, § 81-1202.

Research References

Ark. L. Rev.

Comparative Negligence, 9 Ark. L. Rev. 357.

Comparative Negligence — A Survey for Arkansas Lawyers, 10 Ark. L. Rev. 1.

Comparative Negligence in Arkansas: A “Before and After” Survey, 13 Ark. L. Rev. 89.

Case Notes

In General.

Where the violation of any statute enacted for the safety of the employees contributes to the injury or death of an employee, the master cannot invoke the defense of contributory negligence and assumption of risk on the part of the employee. Western Coal & Mining Co. v. Watts, 131 Ark. 562, 199 S.W. 921 (1917).

Defense of contributory negligence is eliminated from all actions for personal injuries while employed by corporations not engaged in interstate commerce. Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, 205 S.W. 695 (1918); Dierks Lumber & Coal Co. v. Tollerson, 186 Ark. 429, 54 S.W.2d 61 (1932); W.P. Brown & Sons Lumber Co. v. Oaties, 189 Ark. 338, 72 S.W.2d 213 (1934); Goodin v. Boyd-Sicard Coal Co., 197 Ark. 175, 122 S.W.2d 548 (1938).

Applicability.

This section applies to all corporations except while engaged in interstate commerce. Ward Furn. Mfg. Co. v. Weigand, 173 Ark. 762, 293 S.W. 1002 (1927).

This section had no application where the plaintiff's intestate was not an employee of the defendant and the defendant was not a corporation. Fair Oaks Stave Co. v. Shue, 184 Ark. 1041, 44 S.W.2d 670 (1932).

Instructions.

In an action for injury or death of employee, a requested instruction giving this section without explanation should be refused. Presley v. Actus Coal Co., 172 Ark. 498, 289 S.W. 474 (1927).

In a suit by an employee for personal injuries, a requested instruction that if plaintiff gave orders which caused his own injury he could not recover was erroneous. Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S.W. 9 (1927).

An instruction which made contributory negligence a bar to recovery by a servant for personal injuries against a corporation was erroneous. Seaman-Dunning Corp. v. Haralson, 182 Ark. 93, 29 S.W.2d 1085 (1930); Hartman-Clark Bros. Co. v. Melton, 190 Ark. 1001, 82 S.W.2d 257 (1935); Goodin v. Boyd-Sicard Coal Co., 197 Ark. 175, 122 S.W.2d 548 (1938).

Interstate Commerce.

Where employee was a domestic corporation not engaged in interstate commerce, proof of contributory negligence on the part of the employee did not entitle employer to an instructed verdict. Ward Furn. Mfg. Co. v. Pickle, 174 Ark. 463, 295 S.W. 727 (1927).

Lack of Props.

While contributory negligence does not bar a recovery, it does diminish the damages in proportion to the negligence attributable to the person injured. Central Coal & Coke Co. v. Barnes, 149 Ark. 533, 233 S.W. 683 (1921); Southern Anthracite Coal Mining Co. v. Rice, 156 Ark. 94, 245 S.W. 805 (1922); Missouri Pac. Transp. Co. v. Baxter, 189 Ark. 1147, 76 S.W.2d 958 (1934).

The only defense left to a coal company when sued for personal injuries sustained for lack of props was to show that the props were not requested or, if requested, the failure to furnish them was not the proximate cause of the injury. New Union Coal Co. v. Walker, 182 Ark. 460, 31 S.W.2d 753 (1930).

Negligent Co-worker.

In an action by an employee against his corporation-employer and a fellow-servant, contributory negligence is a complete defense for the fellow-servant but, as to the corporation, the doctrine of comparative negligence applies. Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S.W.2d 255 (1931); Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941).

In an action by an employee against his corporation-employer and a fellow-servant, contributory negligence is a complete defense for the fellow-servant but, as to the corporation, the doctrine of comparative negligence applies. American Co. v. Baker, 187 Ark. 492, 60 S.W.2d 572 (1933).

Cited: Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941).

11-8-105. Assumption of risk no defense when safety statute violated.

In any action brought against any corporation under or by virtue of any of the provisions of §§ 11-8-10111-8-108 to recover damages for injuries to, or the death of, any of its employees, the employee shall not be held to have assumed the risks of his or her employment in any case where the violation by the corporation of any statute enacted for the safety of employees contributed to the injury or death of the employee.

History. Acts 1913, No. 175, § 3; C. & M. Dig., § 7146; Pope's Dig., § 9132; A.S.A. 1947, § 81-1203.

Case Notes

Evidence.

Evidence supported finding that employee had not assumed the risk of injury. Poinsett Lumber & Mfg. Co. v. Longino, 139 Ark. 69, 213 S.W. 15 (1919).

Mines.

Assumed risk is no defense where a miner is injured as result of failure to furnish props as required by law in a mine. Southern Anthracite Coal Mining Co. v. Rice, 156 Ark. 94, 245 S.W. 805 (1922).

In an action against a coal mining company for negligently causing the death of an employee, an instruction that the deceased assumed the risk if he departed from the line of duty was proper. Presley v. Actus Coal Co., 172 Ark. 498, 289 S.W. 474 (1927).

Negligence of Co-worker.

An employee does not assume the risk of negligence of a fellow servant. Poinsett Lumber & Mfg. Co. v. Longino, 139 Ark. 69, 213 S.W. 15 (1919).

Occupational Diseases.

Employee does not assume the risk of contracting occupational disease if the disease results from the failure of his employer to comply with the provisions of any section enacted for his safety. Barksdale v. Silica Prods. Co., 200 Ark. 32, 137 S.W.2d 901 (1940).

Cited: L.J. Smith Constr. Co. v. Tate, 151 Ark. 278, 237 S.W. 83 (1922).

11-8-106. Contract exemptions void — Setoff for insurance contributions.

  1. Any contract, rule, or device whatsoever, the purpose or intent of which shall be to enable any corporation to exempt itself from any liability created by §§ 11-8-101 — 11-8-108, shall to that extent be void.
  2. However, in any action brought against any corporation under or by virtue of any of the provisions of §§ 11-8-101 — 11-8-108, the corporation may set off therein any sum it has contributed or paid to any insurance relief benefit or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which the action was brought.

History. Acts 1913, No. 175, § 4; C. & M. Dig., § 7147; Pope's Dig., § 9133; A.S.A. 1947, § 81-1204; Acts 2019, No. 315, § 774.

Amendments. The 2019 amendment deleted “regulation” following “rule” in (a).

Case Notes

Constitutionality.

This section is not unconstitutional as denying corporations equal protection, freedom of contract or due process. Standard Pipe Line Co. v. Burnett, 188 Ark. 491, 66 S.W.2d 637 (1933), cert. denied, 292 U.S. 649, 54 S. Ct. 857, 78 L. Ed. 1499 (1934), superseded by statute as stated in, Ray v. Albemarle Corp., — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 2480 (W.D. Ark. Jan. 14, 2009).

Foreign Corporation.

In an action by an employee on a cause which arose in this state against an out-of-state corporate employer, a defense that the employee contracted with the employer that any injury was to be compensated under the Workers' Compensation Act of that state was precluded by this section. Standard Pipe Line Co. v. Burnett, 188 Ark. 491, 66 S.W.2d 637 (1933), cert. denied, 292 U.S. 649, 54 S. Ct. 857, 78 L. Ed. 1499 (1934), superseded by statute as stated in, Ray v. Albemarle Corp., — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 2480 (W.D. Ark. Jan. 14, 2009).

Jury Question.

Invalidity of release devised to exempt the employer from liability for personal injuries in violation of this section was a question for the jury. Postal Telegraph-Cable Co. v. White, 188 Ark. 361, 66 S.W.2d 642 (1933).

11-8-107. Limitation of action.

No action shall be maintained under §§ 11-8-10111-8-108 unless commenced within three (3) years from the date the cause of action accrued.

History. Acts 1913, No. 175, § 5; 1917, No. 364, § 1, p. 1789; C. & M. Dig., § 7148; Pope's Dig., § 9134; A.S.A. 1947, § 81-1205.

Research References

Ark. L. Rev.

Negligence — Wrongful Death — Statute of Limitation, 15 Ark. L. Rev. 424.

Case Notes

Accrual of Action.

A cause of action for injuries to an employee began to run from the date of the negligent act complained of and not from the time the full extent of the injury was ascertained. Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W.2d 19 (1933); Barksdale v. Silica Prods. Co., 200 Ark. 32, 137 S.W.2d 901 (1940).

Pleading.

Where in defendant's answer it said “the defendant specifically pleads the statute of limitations in case of recovery of the plaintiff,” the plea was sufficient to raise the issue of limitation and the use of the word “case” was a misprision and would be treated as though the word “bar” had been used. Louis Werner Sawmill Co. v. Dyer, 132 Ark. 78, 200 S.W. 281 (1917).

11-8-108. Survival of cause of action.

Any right of action given by §§ 11-8-10111-8-108 to a person suffering injury shall survive to his or her personal representative for the benefit of the surviving spouse and children of the employee and, if none, then of the employee's parents and, if none, then of the next of kin of the employee, but in these cases, there shall be only one (1) recovery for the same injury.

History. Acts 1913, No. 175, § 7; C. & M. Dig., § 7150; Pope's Dig., § 9136; A.S.A. 1947, § 81-1207.

11-8-109. Liability of companies engaged in coal mining.

Every company, whether incorporated or not, engaged in the mining of coal who may employ agents, servants, or employees, those agents, servants, or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by an agent, employee, or servant when resulting from the careless omission of duty or negligence of the employer or which may result from the carelessness, omission of duty, or negligence of any other agent, servant, or employee of the employer, in the same manner and to the same extent as if the carelessness, omission of duty, or negligence causing the injury or death was that of the employer.

History. Acts 1907, No. 69, § 1, p. 162; C. & M. Dig., § 7137; Pope's Dig., § 9123; A.S.A. 1947, § 81-1209.

Publisher's Notes. This section may be superseded by § 11-8-103 with respect to corporations covered by § 11-8-103.

Case Notes

Constitutionality.

This section constitutes a reasonable exercise of the right reserved by Ark. Const., Art. 12, § 6. Ozan Lumber Co. v. Biddie, 87 Ark. 587, 113 S.W. 796 (1908); Aluminum Co. of N. Am. v. Ramsey, 89 Ark. 522, 117 S.W. 568 (1909), aff'd, 222 U.S. 251, 32 S. Ct. 76 (1911) (decisions prior to enactment of § 11-8-103).

This section is not repugnant to the Equal Protection Clause of the Fourteenth Amendment. Phillips Petro. Co. v. Jenkins, 297 U.S. 629, 56 S. Ct. 611, 80 L. Ed. 943 (1936).

Applicability.

This section does not create any liability against improvement districts or the commissioners thereof. Board of Improv. v. Moreland, 94 Ark. 380, 127 S.W. 469 (1910) (decision prior to enactment of § 11-8-103).

This section does not apply to a partnership. Graham v. Thrall & Shea, 95 Ark. 560, 129 S.W. 532 (1910); Jones v. Mayberry, 143 Ark. 390, 220 S.W. 479 (1920).

In an action against a foreign corporation for personal injuries resulting from the negligence of a fellow servant, this section is applicable. Caddo River Lumber Co. v. Grover, 126 Ark. 449, 190 S.W. 560 (1916).

This section applies to an individual operating a coal mine as well as to associations of persons. Harger v. Harger, 144 Ark. 375, 222 S.W. 736 (1920).

Assumption of Risk.

A servant who is aware of the habitual negligence of a fellow servant does not assume the risk of injury therefrom. Saint Louis, I.M. & S. Ry. v. Ledford, 90 Ark. 543, 119 S.W. 1123 (1909) (decision prior to enactment of § 11-8-103).

Under this section servant does not assume risk of danger or peril caused by negligence of his fellow servants. Saint Louis S.W. Ry. v. Burdg, 93 Ark. 88, 124 S.W. 239 (1910); Saint Louis, I.M. & S. Ry. v. Davis, 93 Ark. 484, 124 S.W. 754 (1910); A.L. Clark Lumber Co. v. Bolin, 97 Ark. 344, 133 S.W. 1116 (1911); St. Louis, I. M. & S. R. Co. v. Booth, 98 Ark. 227, 135 S.W. 811 (1911); Missouri & N. A. R. Co. v. VanZant, 100 Ark. 462, 140 S.W. 587 (1911); F. Kiech Mfg. Co. v. Hopkins, 108 Ark. 578, 158 S.W. 981 (1913); Chapman & Dewey Land Co. v. Woodruff, 116 Ark. 189, 173 S.W. 188 (1915); Missouri Pac. Transp. Co. v. Baxter, 189 Ark. 1147, 76 S.W.2d 958 (1934).

The negligence of the master or of a fellow servant in failing to provide a safe place to work where the servant is unaware of the negligence is not assumed by the servant. St. Louis, I. M. & S. R. Co. v. Vann, 98 Ark. 145, 135 S.W. 816 (1911) (decision prior to enactment of § 11-8-103).

Injured employee was not chargeable with having assumed, as incident to his employment, the risk of being hurt unless he realized the danger and then voluntarily exposed himself to it. Saint Louis, I.M. & S. Ry. v. Brogan, 105 Ark. 533, 151 S.W. 699 (1912) (decision prior to enactment of § 11-8-103).

The master was liable for negligence in failing to discover and to suppress the dangerous practice of employees. Henry Wrape Co. v. Barrentine, 138 Ark. 267, 211 S.W. 366 (1919).

In an action against a company for injuries caused by a fellow servant's negligence, an instruction that there is no assumed risk as to the negligence of the fellow servant unless the plaintiff realized the danger and then exposed himself to it was erroneous; the correct rule being that the plaintiff assumed the risk of the dangers as were so obvious that he could and should have discovered the same in the exercise of ordinary care. Edgar Lumber Co. v. Denton, 156 Ark. 46, 245 S.W. 177 (1922).

Burden of Proof.

Burden is on defendant to prove contributory negligence. Soard v. Western Anthracite Coal & Mining Co., 92 Ark. 502, 123 S.W. 759 (1909) (decision prior to enactment of § 11-8-103).

Negligence.

Violation of a rule or custom established for the protection of employees is negligence per se. Saint Louis, I.M. & S. Ry. v. Aiken, 100 Ark. 437, 140 S.W. 698 (1911) (decision prior to enactment of § 11-8-103).

Chapter 9 Workers' Compensation

A.C.R.C. Notes. References to “this chapter” in subchapters 1-8 may not apply to subchapter 9, which was enacted separately.

References to “this chapter” in subchapters 1-4, 6-10, and §§ 11-9-501 to 11-9-529 may not apply to § 11-9-530 which was enacted subsequently.

References to “this chapter” in §§ 11-9-10111-9-115, 11-9-117, 11-9-118, and subchapters 2-10 may not apply to §§ 11-9-116, 11-9-517 and 11-9-518, which were enacted separately.

Cross References. County employees, workers' compensation, § 14-26-101 et seq.

Municipal employees, workers' compensation, § 14-60-101 et seq.

Research References

Ark. L. Rev.

Conflict of Laws, 3 Ark. L. Rev. 27.

Absolute Liability in Arkansas, 8 Ark. L. Rev. 83.

Workmen's Compensation and Common Law Tort — Full Faith and Credit — Conflict of Laws, 10 Ark. L. Rev. 240.

Workmen's Compensation — Double Recovery — Property and Life Insurance Analogies Inherent in Workmen's Compensation, 16 Ark. L. Rev. 281.

Workmen's Compensation — Injury Arising Out of the Course of Employment — Horseplay, 19 Ark. L. Rev. 197.

Benefits from Social Legislation and Labor-Management Contracts: Accommodation of Collateral Sources in Arkansas, 20 Ark. L. Rev. 126.

Conflict of Laws: Arkansas, 32 Ark. L. Rev. 1.

Case Notes, Delinquent Payment of Medical Bills and Attorney's Fees Under the Arkansas Workers' Compensation Act: Is It Time for a New Penalty Provision?, 34 Ark. L. Rev. 758.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Workers' Compensation, 1 U. Ark. Little Rock L.J. 270.

Arkansas Law Survey, Baker, Workers' Compensation, 9 U. Ark. Little Rock L.J. 213.

Legislative Survey, Workers' Compensation, 16 U. Ark. Little Rock L.J. 169.

Oliver, The Impact of Title I of the Americans with Disabilities Act of 1990 on Workers' Compensation Law, 16 U. Ark. Little Rock L.J. 327.

Case Notes

Constitutionality.

Full authority to enact former Workers' Compensation law was given by Ark. Const. Amend. 26, the effect of which is to amend both Ark. Const., Art. 2, § 7 and Ark. Const., Art. 5, § 32. Young v. G.L. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477 (1942) (decision under prior law).

Former Workers' Compensation law was not unconstitutional for depriving claimant of right to trial by jury. Young v. G.L. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477 (1942) (decision under prior law).

Former Workers' Compensation law was not violative of the federal Constitution or of the Constitution of Arkansas. Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1 (1946) (decision under prior law).

In General.

The right to claim compensation under former Workers' Compensation Act was purely statutory and claimant is limited to only the right to claims expressly given by the act. Barth v. Liberty Mut. Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948) (decision under prior law).

Workers' compensation laws are entitlement legislation. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).

Construction.

Former Workers' Compensation law was highly remedial, enacted for the purpose of placing a part of the burden of loss from industrial accidents upon the public at large and was entitled to a liberal construction. Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942); Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S.W.2d 380 (1943) (preceding cases decided under prior law).

Workers' Compensation law should be accorded a broad and liberal construction. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113 (1944); E.H. Noel Coal Co. v. Grilc, 215 Ark. 430, 221 S.W.2d 49 (1949) (preceding cases decided under prior law); Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S.W.2d 26 (1951); Hixson Coal Co. v. Furstenberg, 225 Ark. 568, 284 S.W.2d 120 (1955); Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W.2d 614 (1956); Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956); Shaw v. Keeshin Poultry Co., 227 Ark. 90, 296 S.W.2d 400 (1956); Cummings v. United Motor Exch., Inc., 236 Ark. 735, 368 S.W.2d 82 (1963); Guthrie v. Tyson Foods, Inc., 20 Ark. App. 69, 724 S.W.2d 187 (1987); Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).

Doubtful cases should be resolved in favor of the claimant. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113 (1944) (decision under prior law); Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S.W.2d 26 (1951); Hixson Coal Co. v. Furstenberg, 225 Ark. 568, 284 S.W.2d 120 (1955); Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W.2d 614 (1956); Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956); Cummings v. United Motor Exch., Inc., 236 Ark. 735, 368 S.W.2d 82 (1963); McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963); Sanyo Mfg. Corp. v. Farrell, 16 Ark. App. 59, 696 S.W.2d 779 (1985).

Commission took a liberal view of former Workers' Compensation law, so where one inference would support an award, and another inference would defeat it, the construction favorable to the claimant should have been adopted, if factually sound. Stout Constr. Co. v. Wells, 214 Ark. 741, 217 S.W.2d 841 (1949) (decision under prior law).

The Supreme Court does not favor any interpretation of the statutes which would encourage employee to quit work for the purpose of drawing compensation when he was actually able to work. Quality Excelsior Coal Co. v. Smith, 233 Ark. 67, 342 S.W.2d 480 (1961).

Although there are differences in the general construction of Workers' Compensation laws and employee insurance exclusions, there was little doubt that the essential elements of employment remained the same, which caused them to be relevant to each other. Eagle Star Ins. Co. v. Deal, 474 F.2d 1216 (8th Cir. 1973).

In determining where the preponderance of the evidence lies, the Workers' Compensation Commission must draw all legitimate inferences and resolve doubts in favor of the claimant, viewing and construing the evidence in favor of the claimant and the purpose of this chapter to compensate those who, by reasonable construction, are within the terms of this chapter. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979).

Although this chapter is remedial and should be construed liberally in favor of the worker, this does not mean that the court should either enlarge or restrict plain provisions of the chapter. Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

It is the duty of the commission to follow a liberal approach and to draw all reasonable inferences in favor of the claimant. Southland Corp. v. Magers, 15 Ark. App. 360, 695 S.W.2d 380 (1985).

The provisions of the Workers' Compensation Act are to be construed liberally in favor of the claimant in light of its beneficent and humane purposes, and all doubtful issues must be resolved in favor of the claimant. Ashby v. Arkansas Vinegar Co., 22 Ark. App. 167, 737 S.W.2d 177 (1987), aff'd, 294 Ark. 412, 743 S.W.2d 798 (1988).

Purpose.

Former Workers' Compensation law did not call for general accident insurance, its purpose being to compensate only for losses resulting from the risks to which the fact of engaging in the industry exposes the employee. Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S.W.2d 574 (1943), overruled in part, Southern Cotton Oil Div. v. Childress, 237 Ark. 909, 377 S.W.2d 167 (Ark. 1964) (decision under prior law).

The policy behind former Workers' Compensation law was that it is fairer to discharge, as an expense of the industry to be paid by the ultimate consumer, a part of the losses arising from the risks to which those engaged in that industry are exposed by reason of being so engaged, than to let the losses fall entirely upon the employee who gets hurt. Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S.W.2d 574 (1943), overruled in part, Southern Cotton Oil Div. v. Childress, 237 Ark. 909, 377 S.W.2d 167 (Ark. 1964) (decision under prior law).

The purpose and effect of former Workers' Compensation law was to substitute, as to employees embraced within its terms, the liability thereby created for all liability of the master arising from the death or injury of his servant. Odom v. Ark. Pipe & Scrap Material Co., 208 Ark. 678, 187 S.W.2d 320 (1945) (decision under prior law).

One of the primary reasons for workers' compensation is to spread the loss arising from injury to the employee throughout industry. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978).

The basic purpose of this chapter is to shift the burden of work-related injuries from individual employers and employees to the consuming public by making available to the injured employee a speedy and informal statutory remedy. Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985).

Workers' compensation insurance has the salutary purpose of protecting employees, employers and the public by providing a means by which injured workers may be compensated during the period of their inability to work caused by the injury so that they may continue to exist and feed their families. The public is protected because, hopefully, this prevents injured workers from becoming wards of the state maintained at the expense of the public. Wal-Mart Stores, Inc. v. Crist, 664 F. Supp. 1242 (W.D. Ark. 1987), rev'd, 855 F.2d 1326 (8th Cir. Ark. 1988).

The workers' compensation laws were enacted to create rights and benefits for injured workers and their dependents. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).

Applicability.

Workers' Compensation Commission does not have jurisdiction of action for slander, as this chapter does not provide for compensation for damage to character as the result of slander. Braman v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949), overruled, United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (Ark. 1998).

This chapter deals, not with intentional wrongs, but only with accidental injuries. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).

Where employee alleged that employer intentionally destroyed or negligently lost parts of machine that caused employee's injury, and consequently damaged employee's products liability suit against the supplier of the machine, the Workers' Compensation Act did not apply and the employer was not protected by the exclusivity provision. Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989).

The Arkansas Workers' Compensation Act does not specify what extrastate situations it covers. An employer's liability under the Act, however, is based upon disability or death from an injury arising out of and in the course of employment, and “employment” is defined as every employment carried on in the state. Therefore, the application of the Arkansas Workers' Compensation Act is limited by its terms to harms arising out of employments carried on in Arkansas. Patton v. Brown & Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990).

Burden of Proof.

The rule of liberal construction is not a substitute for a claimant's burden of establishing an injury by a preponderance of the evidence. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984).

Employer Immunity.

The act was not intended to extend employer's immunity from damages for an injury suffered by an employee to include an employee's cause of action against a third party. Even though the employer will have a setoff against at least part of the damages established in the third party action because of compensation benefits paid, the employee has a right to seek reimbursement against the third party for losses incurred, especially those in excess of scheduled benefits provided by law. Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989).

Exclusive Remedy.

Where an action involves both the Uniform Contribution among Tortfeasors Act, § 16-61-201 et seq., and this chapter, it is in the interest of public policy and in keeping with the intent of the General Assembly to give this chapter priority as an exclusive remedy. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Jurisdiction.

The first jurisdictional fact that must be established under this chapter is that the claimant or decedent was in fact and in law an employee of the person against whom the claim is asserted. Eagle Star Ins. Co. v. Deal, 337 F. Supp. 1264 (W.D. Ark. 1972), rev'd, 474 F.2d 1216 (8th Cir. 1973).

Federal district court does not have jurisdiction to determine whether a person is entitled to Workers' Compensation benefits under Arkansas law. Eagle Star Ins. Co. v. Deal, 337 F. Supp. 1264 (W.D. Ark. 1972), rev'd, 474 F.2d 1216 (8th Cir. 1973).

The Workers' Compensation Commission had jurisdiction of a claim arising from an accident in another state, where the employer was an Arkansas corporation, and where the contract for hire was consummated in Arkansas. Midwest Dredging Co. v. Etzberger, 270 Ark. 936, 606 S.W.2d 619 (1980).

Where claimant was injured while working in another state and the only circumstance bearing on jurisdiction was that claimant was an Arkansas resident, and facts connecting the state with the employment per se were entirely lacking, the statutory basis required for the commission's jurisdiction was absent. Patton v. Brown & Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990).

Trial court did not err in holding that it had concurrent jurisdiction to determine the applicability of this chapter. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). But see VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (Ark. 1998).

Unemployment Benefits.

An unemployed, partially disabled person may still be able to compete in the labor market and may qualify for unemployment benefits as one available for work, although she may be receiving partial permanent disability benefits under this chapter. Ross v. Daniels, 266 Ark. 1056, 599 S.W.2d 390 (Ct. App. 1979).

Cited: Miller v. Missouri Pac. Transp. Co., 225 Ark. 475, 283 S.W.2d 158 (1955); Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961); American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961); Auto Salvage Co. v. Rogers, 232 Ark. 1013, 342 S.W.2d 85 (1961); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971); Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977); Arkansas Emp. Sec. Div. v. Beeler, 2 Ark. App. 251, 620 S.W.2d 307 (1981); Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1982); Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Washington County v. Ford, 21 Ark. App. 206, 730 S.W.2d 515 (1987); Tuggle v. Shelter Mut. Ins. Co., 961 F.2d 794 (8th Cir. 1992).

Subchapter 1 — General Provisions

Cross References. Employers' liability, § 11-8-101 et seq.

Public Employee Workers' Compensation Act, § 21-5-601 et seq.

Workmen's compensation laws, Ark. Const. Amend. 26.

Effective Dates. Acts 1971, No. 162, § 3: Feb. 26, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present Workmen's Compensation laws provide for coverage of self-employed employers, and that clarification thereof is necessary to enable officers of a corporation to exclude themselves from coverage under Workmen's Compensation laws. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1975 (Extended Sess., 1976), No. 1227, § 18: Section 2 effective Sept. 1, 1976.

Acts 1975 (Extended Sess., 1976), No. 1227, § 21: Feb. 13, 1976. Emergency clause provided: “It is hereby found and determined by the General Assembly that the welfare of both employer and employee is of primary interest and concern to the State of Arkansas; that the maximum benefits presently payable under the Workmen's Compensation law are inadequate due to the steadily increasing cost of living and should be increased immediately to meet said increase in the cost of living; that certain other provisions should be clarified or modified, and that it is in the best interest of both employers and employees that this be accomplished as soon as possible. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1979, No. 119, § 3: Feb. 13, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present Workers' Compensation law a sole proprietor or partner is not eligible to obtain worker's compensation coverage for himself; that the inability to obtain such coverage is creating a serious hardship on such sole proprietors and partners as well as general contractors for whom they provide services; that this Act is designed to alleviate this problem by enabling such persons to obtain workers' compensation coverage and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1979, No. 253, § 12: Mar. 2, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain provisions of the Workers' Compensation law are in urgent need of revision to more clearly define the benefits to be provided by Worker's Compensation coverage; that this Act is designed to provide such clarification and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 290, § 17: Mar. 3, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is urgent need to clarify the provisions of the Arkansas Workers' Compensation law and to provide improved benefits for persons qualifying under this Act; that this Act is designed to provide such clarification and improved benefits and should be given effect at the earliest possible date. Therefore an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 631, § 5: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly that the law as to permissible cross appeals to the Workers' Compensation Commission and the Arkansas Court of Appeals is ambiguous and must be clarified immediately to eliminate the possibility of inequitable treatment of parties before these tribunals; that Section 20 of the Workers' Compensation Act should be immediately amended to eliminate internal inconsistency in the Act; and that the scope of the Commission's authority to award attorneys fees on a lump sum is unclear and must be immediately clarified. Therefore, an emergency is hereby declared to exist, and this Act, being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1986 (2nd Ex. Sess.), No. 10, § 15: July 1, 1986. Emergency clause provided: “It is hereby found and determined by the General Assembly that the increased benefits and improvements in the administration of the Workers' Compensation system in Arkansas is in the best interest of employees, employers, the public in general; therefore, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1986.”

Acts 1987, No. 524, § 4: Aug. 1, 1987.

Acts 1987, No. 1015, § 21: Apr. 14, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of the case Ricarte v. State, CR 86-31, a question has arisen over the validity of Act 1227 of the Extended Session of 1976; that this Act is a reenactment of the former law; and that the immediate passage of this Act is necessary to clarify the state of the law on this issue. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 796, § 41: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Workers' Compensation Law is in immediate need of substantial revision; that this act accomplishes immediate revision; and that this act shall go into effect as soon as is practical which is determined to be July 1, 1993; and that unless this emergency clause is adopted, this act will not go into effect until after July 1, 1993. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993. Furthermore, the provisions of this act shall apply only to injuries which occur after July 1, 1993.”

Acts 1997, No. 479, § 16: Mar. 13, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the limited liability company statute and other acts relating to pass through entities and related laws need amending in order to better reflect the intent and operation of those laws as originally drafted and to be consistent with current trends. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.

“Notwithstanding the foregoing, SECTION 10 of this act (§ 4-32-802(c)) shall only apply to limited liability companies in exsitence [sic] on the effective date of this act in the event an election is made with the Secretary of State to have this provision apply; otherwise, the original § 4-32-802(c) shall apply to limited liability companies existing on the effective date of this act.”

Acts 1997, No. 808, § 17: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Workers' Compensation Law is in immediate need of revision; that this act accomplishes immediate revision; and that this act shall go into effect as soon as is practical which is determined to be July 1, 1997; and that unless this emergency clause is adopted, this act will not go into effect until after July 1, 1997. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 1999, No. 881, § 28: Mar. 25, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly of the State of Arkansas that the present funeral pre-need laws, employee leasing firm laws, and other insurance laws are inadequate to protect the public. In pertinent part, the changes to the Insurance Code needed to assure the stability of funding for the Fraud Investigation Division of the Department must be enacted in the laws of this state well before the new fiscal year beginning July 1, 1999. The changes to authorized appropriations, as well as changes to the disability (health) insurance laws on individuals to conform to the federal laws on group policies with guaranteed renewability require immediate adoption; and unless this emergency clause is adopted, this act might not become effective until after the beginning of the next fiscal year. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after the date of its passage and approval. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 1179, § 19: July 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1999 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1999 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1999.”

Acts 2001, No. 743, § 3: Mar. 13, 2001. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Arkansas Insurance Code is in immediate need of revision to protect the insurance-buying consumers of this state; that the provisions of this act are essential to the successful operations and activities of the Insurance Fraud Investigation Division and the Worker's Compensation Fraud Investigation Unit of the Arkansas Insurance Department which are intended to provide protection to the insurance-buying consumers of this state; delay in the effective date of this act would work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1237, § 2: Apr. 10, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Department of Health, in response to the federal Homeland Security Act of 2002, will begin voluntary smallpox vaccinations of health care workers and public safety personnel on February 19, 2003, and participation in the voluntary program will be enhanced by clarification that an adverse reaction to vaccine will be compensable under the Workers' Compensation Law. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2005, No. 1692, § 2: Apr. 5, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the objective evidence necessary to prove physical or anatomical impairment in worker's compensation cases needs to be clarified; that such changes need to be in effect immediately to provide for clarity with respect worker's compensation insurance coverage; and that this act is immediately necessary to protect the health and safety of workers. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Workmen's compensation act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

Cancer as compensable under workers' compensation acts. 19 A.L.R.4th 639.

Release by employee of employer from claims arising out of employment, duress by employer vitiating release. 30 A.L.R.4th 294.

Workers' compensation immunity as extending to one owning controlling interest in employer corporation, 30 A.L.R.4th 948.

Discharge from employment for filing claim. 32 A.L.R.4th 1221.

Workers' compensation law as precluding employee's suit against employer for third person's criminal attack, 49 A.L.R.4th 926.

Reasonableness of employee's refusal of medical services tendered by employer, 72 A.L.R.4th 905.

Workers' compensation statute as barring illegally employed minor's tort action, 77 A.L.R.4th 844.

Ownership interest in employer business as affecting status as employee for workers' compensation purposes, 78 A.L.R.4th 973.

Compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.

Right of workers' compensation insurer or employer paying to workers' compensation fund, on the compensable death of an employee with no dependents, to indemnity or subrogation from proceeds or wrongful death action brought against third-party tortfeasor, 7 A.L.R.5th 969.

Compensability of injury during tryout, employment test, or similar activity designed to determine employability, 8 A.L.R.5th 798.

Right to workers' compensation for injuries suffered after termination of employment, 10 A.L.R.5th 245.

Eligibility for workers' compensation as affected by claimant's misrepresentation of health or physical condition at time of hiring, 12 A.L.R.5th 658.

Jurors as within coverage of worker's compensation acts, 13 A.L.R.5th 444.

Coverage of employee's injuries or death from exposure to the elements — modern cases, 20 A.L.R.5th 346.

Reopening lump-sum compensation payment, 26 A.L.R.5th 127.

Validity, construction, and application of workers' compensation provisions relating to nonresident alien dependents, 28 A.L.R.5th 547.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment, 47 A.L.R.5th 801.

Construction and effect of statutory exemptions of proceeds of workers' compensation awards, 48 A.L.R.5th 473.

Workers' compensation as precluding employee's suit against employer for sexual harassment, 51 A.L.R.5th 163.

Violation of employment rule as bar to claim for workers' compensation, 61 A.L.R.5th 375.

Availability, rate, or method of calculation of interest on attorneys' fees of penalties, 79 A.L.R.5th 201.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation, 80 A.L.R.5th 417.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action, 82 A.L.R.5th 149.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving non-personnel action, 83 A.L.R.5th 103.

Am. Jur. 82 Am. Jur. 2d, Work. Comp., § 1 et seq.

C.J.S. 99 C.J.S., Work. Comp., § 1 et seq.

Case Notes

Sexual Harassment.

Under Arkansas law, sexual harassment is not a risk to which an employee is exposed because of the nature of the employment, but is a risk to which the employee could be equally exposed outside of the employment; therefore, such claim is neither covered nor barred by the Workers' Compensation Act. King v. Consolidated Freightways Corp., 763 F. Supp. 1014 (W.D. Ark. 1991).

11-9-101. Title — Purpose.

  1. This chapter shall be cited as the “Workers' Compensation Law”.
  2. The primary purposes of the workers' compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force; to improve workplace safety through safety programs; to improve health care delivery through use of managed care concepts; to encourage the return to work of injured workers; to deter and punish frauds of agents, brokers, solicitors, employers, and employees relating to procurement of workers' compensation coverage or the provision or denial of benefits; to curtail the rise in medical costs associated with the provision of workers' compensation benefits; and to emphasize that the workers' compensation system in this state must be returned to a state of economic viability.

History. Init. Meas. 1948, No. 4, § 1, Acts 1949, p. 1420; Acts 1975 (Extended Sess., 1976), No. 1227, § 1; A.S.A. 1947, § 81-1301; reen. Acts 1987, No. 1015, § 1; Acts 1993, No. 796, § 1.

A.C.R.C. Notes. As amended by Acts 1993, No. 796, § 1, this section provided, in part:

“Any and all case law inconsistent with the purposes set forth herein is specifically annulled.”

Acts 2001, No. 1757, § 9, provided:

“Nothing in the act, which originated as House Bill 2646 of 2001, nor in Act 1552 of 1999 shall impliedly repeal any part of Act 796 of 1993. Act 796 of 1993 is expressly reaffirmed by this act, which originated as House Bill 2646 of 2001.”

Research References

U. Ark. Little Rock L. Rev.

Moore, Workers' Compensation — Who Has Jurisdiction to Determine Jurisdiction? The Arkansas Supreme Court Abandons a Rule of Concurrent Jurisdiction and Adopts the Doctrine of Primary Jurisdiction. VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), 21 U. Ark. Little Rock L. Rev. 413.

Case Notes

In General.

Denial of employer's writ of prohibition after the circuit court refused to dismiss employee's negligence claim against employer was proper pursuant to Ark. Const. art. 2, § 13 because a worker whose injury was not covered by the Workers' Compensation Act was not precluded from filing a claim in tort against his employer. Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005).

Arkansas Workers' Compensation Act, § 11-9-101 et seq., including the exclusive-remedy provision of § 11-9-105(a), is made possible by Ark. Const. Amend. 26, which amended Ark. Const. Art. V, § 32; that amendment provides that the Arkansas general assembly has the power to enact legislation prescribing the amount of compensation employers are required to pay for injuries or deaths of employees. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64 (2010).

Purpose.

The purpose of this chapter is to protect the rights of both the employee and the compensation carrier. Simpson v. Liberty Mut. Ins. Co., 28 F.3d 763 (8th Cir. 1994).

Section 11-9-522(f) and this section restate the goals of avoiding duplicate payments and of curtailing the cost of workers' compensation insurance, which are legitimate governmental concerns. Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997), aff'd in part, reversed in part, 333 Ark. 41, 969 S.W.2d 154 (1998).

Construction of Workers' Compensation Act had to take into account the purpose of it, which was to provide benefits to workers after they had been injured on the job in order for them to be able to return to work; the purpose of the act was not furthered by denying benefits to the claimant who tried to work through the pain and did not leave the job after the employer refused his request to provide medical treatment and he was unable to pay for it himself. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).

Employment.

Worker was not in the employment of the employer, a charitable organization, at the time he was injured and thus was not entitled to workers' compensation benefits; worker was performing labor as part of an alcohol rehabilitation program in which he had enrolled himself, and the work that he performed was temporary work therapy designed to assist him in overcoming his addiction. Dixon v. Salvation Army, 360 Ark. 309, 201 S.W.3d 386 (2005).

Jurisdiction.

Arkansas Workers' Compensation Act (WCA), § 11-9-101 et seq., deprives federal district courts of subject-matter jurisdiction over tort claims asserted against in-state employers when the employer's workers have received benefits under the WCA. Without subject matter jurisdiction, the district courts cannot subject in-state employers to compulsory process, which is a requirement for a fair trial under U.S. Const. Amend. VI. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Court granted a writ of prohibition preventing a circuit court from exercising jurisdiction over a husband's action against an employer arising out of the death of his wife while she was working for the employer because at the point in the litigation, the circuit court was wholly without jurisdiction over the claims as under Arkansas Workers' Compensation Act, §§ 11-9-101 — 1001, the claims were within the exclusive jurisdiction of the Arkansas Workers' Compensation Commission. Int'l Paper Co. v. Clark Co. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008).

Cited: Glenn v. Farmers & Merchants Ins. Co., 649 F. Supp. 1447 (W.D. Ark. 1986); Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005); Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005); Ark. Game & Fish Comm'n v. Gerard, 2018 Ark. 97, 541 S.W.3d 422 (2018).

11-9-102. Definitions.

As used in this chapter:

  1. “Carrier” means any stock company, mutual company, or reciprocal or interinsurance exchange authorized to write or carry on the business of workers' compensation insurance in this state. Whenever required by the context, the term “carrier” shall be deemed to include duly qualified self-insureds or self-insured groups;
  2. “Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or of the spouse of the deceased, and a foster child;
  3. “Commission” means the Workers' Compensation Commission;
    1. “Compensable injury” means:
      1. An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
      2. An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
        1. Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;
        2. A back or neck injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence; or
        3. Hearing loss which is not caused by a specific incident or which is not identifiable by time and place of occurrence;
      3. Mental illness as set out in § 11-9-113;
      4. Heart or cardiovascular injury, accident, or disease as set out in § 11-9-114;
      5. A hernia as set out in § 11-9-523; or
      6. An adverse reaction experienced by any employee of the Department of Health or any employee of a hospital licensed by the Department of Health related to vaccination with Vaccinia vaccines for smallpox, including the Dryvax vaccine, regardless of whether the adverse reaction is the result of voluntary action by the injured employee.
    2. “Compensable injury” does not include:
      1. Injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of nonemployment-related hostility or animus of one, both, or all of the combatants and which assault or combat amounts to a deviation from customary duties; furthermore, except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries;
      2. Injury incurred while engaging in or performing or as the result of engaging in or performing any recreational or social activities for the employee's personal pleasure;
      3. Injury which was inflicted upon the employee at a time when employment services were not being performed or before the employee was hired or after the employment relationship was terminated; or
        1. Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
        2. The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
        3. Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee's body.
        4. An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician's orders did not substantially occasion the injury or accident.
    3. The definition of “compensable injury” as set forth in this subdivision (4) shall not be deemed to limit or abrogate the right to recover for mental injuries as set forth in § 11-9-113 or occupational diseases as set forth in § 11-9-601 et seq.
    4. A compensable injury must be established by medical evidence supported by objective findings as defined in subdivision (16) of this section.
    5. Burden of Proof. The burden of proof of a compensable injury shall be on the employee and shall be as follows:
      1. For injuries falling within the definition of compensable injury under subdivision (4)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence; or
      2. For injuries falling within the definition of compensable injury under subdivision (4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.
    6. Benefits.
      1. When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter.
        1. Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
        2. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
      2. Under this subdivision (4)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
      3. Nothing in this section shall limit the payment of rehabilitation benefits or benefits for disfigurement as set forth in this chapter;
  4. “Compensation” means the money allowance payable to the employee or to his or her dependents and includes the allowances provided for in § 11-9-509 and funeral expenses;
  5. “Death” means only death resulting from compensable injury as defined in subdivision (4) of this section;
  6. “Department” means the State Insurance Department;
  7. “Disability” means incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury;
    1. “Employee” means an individual, including a minor, whether lawfully or unlawfully employed in the service of an employer under a contract of hire or apprenticeship, written or oral, expressed or implied, and the individual's employment status has been determined by consideration of the twenty-factor test required by the Empower Independent Contractors Act of 2019, § 11-1-201 et seq.
    2. The term “employee” shall not include:
      1. An individual who is both a licensee as defined in § 17-42-103 and a qualified real estate agent as that term is defined in section 3508(b)(1) of the Internal Revenue Code of 1986, including all regulations thereunder;
      2. An individual whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer; or
      3. An individual who is required to perform work for a municipality, county, state, or the United States Government upon having been convicted of a criminal offense or while incarcerated.
    3. Any individual holding from the commission a current certification of noncoverage under this chapter shall be conclusively presumed not to be an employee for purposes of this chapter or otherwise during the term of his or her certification or any renewals thereof or until he or she elects otherwise, whichever time period is shorter.
    4. Any reference to an employee who has been injured, when that employee is dead, shall also include his or her legal representative, dependents, and other persons to whom compensation may be payable;
  8. “Employer” means any individual, partnership, limited liability company, association, or corporation carrying on any employment, the receiver or trustee of the same, or the legal representative of a deceased employer;
  9. “Employment” means:
    1. Every employment in the state in which three (3) or more employees are regularly employed by the same employer in the course of business except:
      1. An employee employed as a domestic servant in or about a private home;
      2. An employee employed to do gardening, maintenance, repair, remodeling, or similar work in or about the private home or residence of the person employing the employee;
      3. Agricultural farm labor;
      4. The State of Arkansas and each of the political subdivisions thereof except as provided by §§ 6-17-1401 — 6-17-1405, 14-26-101 — 14-26-104, 14-60-101 — 14-60-104, 19-10-101 — 19-10-103, 19-10-202 — 19-10-210, 19-10-401 — 19-10-406, and 21-5-601 — 21-5-610;
      5. A person for whom a rule of liability for injury or death arising out of and in the course of employment is provided by the laws of the United States;
      6. A person performing services for any nonprofit religious, charitable, or relief organization;
      7. Any person engaged in the vending, selling, offering for sale, or delivery directly to the general public of any newspapers, magazines, or periodicals or any person acting as sales agent or distributor as an independent contractor of or for any newspaper, magazine, or periodical; and
      8. Any individual who is both a licensee as defined in § 17-42-103 and a qualified real estate agent as that term is defined in section 3508(b)(1) of the Internal Revenue Code of 1986, including all regulations thereunder;
    2. Every employment in which two (2) or more employees are employed by any person engaged in building or building repair work;
    3. Every employment in which one (1) or more employees are employed by a contractor who subcontracts any part of his or her contract; and
    4. Every employment in which one (1) or more employees are employed by a subcontractor;
  10. “Healing period” means that period for healing of an injury resulting from an accident;
  11. “Insurance Commissioner” means the Insurance Commissioner of the State of Arkansas;
    1. “Major cause” means more than fifty percent (50%) of the cause.
    2. A finding of major cause shall be established according to the preponderance of the evidence;
  12. “Medical services” means those services specified in § 11-9-508;
      1. “Objective findings” are those findings which cannot come under the voluntary control of the patient.
        1. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain.
        2. For the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
        1. Objective evidence necessary to prove physical or anatomical impairment in occupational hearing loss cases may be established by medically recognized and accepted clinical diagnostic methodologies, including, but not limited to, audiological tests that measure air and bone conduction thresholds and speech discrimination ability.
        2. Any difference in the baseline hearing levels must be confirmed with a subsequent test within the next four (4) weeks but not before five (5) days and being adjusted for presbycusis.
    1. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty;
    1. “State average weekly wage” means the state average weekly wage determined annually by the Division of Workforce Services in the preceding calendar year pursuant to § 11-10-502.
    2. If, for any reason, the determination is not available, the commission shall determine the wage annually after reasonable investigation and public hearing;
  13. “Time of accident” or “date of accident” means the time or date of the occurrence of the accidental incident from which compensable injury, disability, or death results;
  14. “Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported by the employer pursuant to section 6053 of the Internal Revenue Code of 1954 and the regulations promulgated pursuant thereto or the amount of actual tips reported, whichever amount is greater; and
    1. “Widow” shall include only the decedent's legal wife, living with or dependent for support upon him at the time of his death.
    2. “Widower” shall include only the decedent's legal husband, living with or dependent for support upon her at the time of her death.

History. Init. Meas. 1948, No. 4, § 2, Acts 1949, p. 1420; Acts 1975 (Extended Sess., 1976), No. 1227, § 2; 1979, No. 119, § 1; 1981, No. 290, § 1; 1983, No. 444, § 1; 1986 (2nd Ex. Sess.), No. 10, § 1; A.S.A. 1947, § 81-1302; reen. Acts 1987, No. 1015, § 2; Acts 1993, No. 796, § 2; 1995, No. 919, §§ 1, 2; 1997, No. 479, § 8; 1997, No. 832, § 1, 2; 1999, No. 20, § 1; 2001, No. 1757, §§ 1, 2; 2003, No. 1237, § 1; 2005, No. 1250, § 1; 2005, No. 1692, § 1; 2007, No. 546, § 2; 2019, No. 910, § 170; 2019, No. 1055, §§ 4, 5.

A.C.R.C. Notes. Part of this section was reenacted by Acts 1987, No. 1015, § 2. Acts 1987, No. 834 provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Subdivision (5)(C), as originally enacted by Acts 1993, No. 796, § 2, began:

“Any and all prior decisions by the Commission and the Courts inconsistent with the definition of compensable injury as herein set forth are hereby specifically annulled, repealed, and held for naught.”

Acts 2001, No. 1757, § 9, provided in part:

“Nothing in the act, which originated as House Bill 2646 of 2001, nor in Act 1552 of 1999 shall impliedly repeal any part of Act 796 of 1993. Act 796 of 1993 is expressly reaffirmed by this act, which originated as House Bill 2646 of 2001.”

Acts 2001, No. 1757, § 12, provided:

“All laws and parts of laws expressly in conflict with this act are repealed. No part of Act 796 of 1993 shall be impliedly repealed by this act or Act 1552 of 1999.”

Amendments. The 2019 amendment by No. 910 substituted “Division of Workforce Services” for “Department of Workforce Services” in (17)(A).

The 2019 amendment by No. 1055 rewrote (9)(A); added (9)(B)(ii) and (9)(B)(iii) and added the (9)(B)(i) designation; and substituted “An individual” for “any individual” in (9)(B)(i).

U.S. Code. Section 3508 of the Internal Revenue Code of 1986, referred to in (9)(B) and (11)(A), is codified as 26 U.S.C. § 3508.

Section 6053 of the Internal Revenue Code of 1954, referred to in (19), is codified as 26 U.S.C. § 6053.

Research References

ALR.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Right to compensation under particular statutory provisions. 122 A.L.R.5th 337.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli-Requisites of, and factors affecting, compensability. 13 A.L.R.6th 209.

Right to workers' compensation for injury suffered by worker en route to or from worker's home where home is claimed as “work situs”. 15 A.L.R.6th 633.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Right to Workers' Compensation for Physical Injury or Illness Suffered by Claimant as Result of Nonsudden Mental Stimuli — Compensability under Particular Circumstances. 39 A.L.R.6th 445.

Validity, Construction, and Application of Statutory Provisions Exempting or Otherwise Restricting Farm and Agricultural Workers from Worker's Compensation Coverage. 40 A.L.R.6th 99.

Validity, Construction, and Application of State Workers' Compensation Laws to Claim for Hearing Loss — Resulting from Long Term Noise Exposure. 99 A.L.R.6th 643 (2014).

Ark. L. Notes.

Noble, Erosion of Agricultural Labor Exemptions in Employment Law: Recent Developments Relevant to Arkansas, 1996 Ark. L. Notes 71.

Norwood, “Hi ho, hi ho, it's off to work we go:” The 1993 Arkansas Workers' Compensation Code and the “Performing Work” Doctrine, 2007 Ark. L. Notes 91.

Ark. L. Rev.

Workmen's Compensation — Common Law Marriage, 3 Ark. L. Rev. 487.

Workmen's Compensation — Corporate Officers and Partners as “Employees” Within the Act, 4 Ark. L. Rev. 498.

Workmen's Compensation — Employee Returning to Work After Week End — Whether “In Course of Employment,” 7 Ark. L. Rev. 423.

Workmen's Compensation — Existence of Employment Relation — Discharged Workman, 9 Ark. L. Rev. 188.

Workmen's Compensation — Employees Excluded from Coverage — Casual Employee, 18 Ark. L. Rev. 181.

Workmen's Compensation — Injury from Act of God as One Arising Out of Employment, 18 Ark. L. Rev. 357.

Workmen's Compensation — Injury Arising Out of the Course of Employment — Horseplay, 19 Ark. L. Rev. 197.

Workmen's Compensation: The “Going and Coming Rule” and Its Exceptions in Arkansas, 21 Ark. L. Rev. 414.

Workmen's Compensation — Recreational Activities Within the Scope of Employment, 23 Ark. L. Rev. 682.

Workmen's Compensation — Contractually Required Insurance for Agricultural Laborers — Coverage and Procedure, 24 Ark. L. Rev. 385.

Workmen's Compensation: Injuries Sustained While Preparing for Work Ruled Compensable, 30 Ark. L. Rev. 89.

Leflar, Compensation for Work-Related Illness in Arkansas, 41 Ark. L. Rev. 89.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

Recent Developments, Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (Ark. 1998); and Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (Ark. 1998), 51 Ark. L. Rev. 856.

Dolan, Kildow v. Baldwin Piano & Oregon — The Tide Has Turned for Legitimate Carpal Tunnel Syndrome Claims in Arkansas Workers' Compensation Law, 54 Ark. L. Rev. 439.

Recent Development: Workers Compensation — Defining “Employee,” 57 Ark. L. Rev. 441 (2004).

U. Ark. Little Rock L.J.

Karber, Survey of Arkansas Law: Workers' Compensation, 2 U. Ark. Little Rock L.J. 294.

Powell, Survey of Workers' Compensation Law, 3 U. Ark. Little Rock L.J. 329.

Arkansas Law Survey, Greene, Workers' Compensation, 7 U. Ark. Little Rock L.J. 271.

Note, Workers' Compensation — “Current Total Disability” Benefits Are Not Legitimate, 11 U. Ark. Little Rock L.J. 109.

Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.

Lucy, Workers' Compensation Law: Act 796 of 1993 and the Definition of “Compensable Injury,” 20 U. Ark. Little Rock L.J. 265.

Annual Survey of Caselaw, Workers' Compensation, 25 U. Ark. Little Rock L. Rev. 1051.

Survey of Legislation, 2003 Arkansas General Assembly, Labor Law, Reaction to Smallpox Vaccine, 26 U. Ark. Little Rock L. Rev. 426.

Survey of Legislation, 2005 Arkansas General Assembly, Labor Law, 28 U. Ark. Little Rock L. Rev. 363.

Case Notes

Constitutionality.

Prior to the 1981 amendment a widow needed only to be either living with or dependent for support upon her husband at the time of his death to be entitled to compensation, while a widower had to both be living with and dependent upon his wife for support at the time of her death and be incapacitated to support himself for compensation, which was an impermissible gender-based discrimination and violated the fourteenth amendment to the U.S. Constitution and Ark. Const., Art. 2, § 18; however, that portion was severable and the offending words “was incapacitated to support himself” were excised from the section. Swafford v. Tyson Foods, Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981) (decision prior to the 1981 amendment).

Subdivision (4)(B)(iv) of this section is constitutional since there is a rational basis for the conclusion that the presence of cocaine metabolites is related to intoxication or impairment. Ester v. National Home Ctrs., 335 Ark. 356, 981 S.W.2d 91 (1998).

Construction.

The statutorily-mandated standard of strict construction cannot be applied to subdivision (5) in such a way as to require that a claimant must offer objective medical evidence to prove not only the existence of an injury, but also to show the circumstances under which the injury was sustained and the precise time of the injury's occurrence; subdivision (5) contains many elements that simply are not susceptible of proof by medical evidence supported by objective findings. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

If there is a causal connection between the primary injury and subsequent complication or disability, an activity of the claimant that triggers the subsequent complications must be “unreasonable under the circumstances,” in order to be an independent intervening cause under (5)(F)(iii) of this section. Davis v. Old Dominion Freight Line Inc., 69 Ark. App. 74, 13 S.W.3d 171 (2000), aff'd, 341 Ark. 751, 20 S.W.3d 326 (2000).

Although subsection (16)(B) of this section provides that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty, a statement by complainant's physician that the accident as described by complainant “could have caused the herniation and need for surgery”, met the requirement of (16)(B) of this section. Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), aff'd, 341 Ark. 527, 20 S.W.3d 280 (2000).

Applicability.

The Arkansas Workers' Compensation Act does not specify what extrastate situations it covers. An employer's liability under the Act, however, is based upon disability or death from an injury arising out of and in the course of employment, and “employment” is defined as every employment carried on in the state. Therefore, the application of the Arkansas Workers' Compensation Act is limited by its terms to harms arising out of employments carried on in Arkansas. Patton v. Brown & Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990).

Proceedings before the Workers' Compensation Commission and a workers' compensation claim in Oklahoma are not mutually exclusive, but all states having a legitimate interest in an injury have the right to apply their own rules and standards, either separately, simultaneously or successively. Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992).

Workers' Compensation Commission's decision to deny worker permanent partial disability benefits was based on a flawed application of subdivision (4)(F)(ii) of this section; although the commission's opinion properly examined the worker's claim regarding the issue of permanent impairment, its conclusions addressed whether the compensable injury was the major cause of the permanent disability or need for treatment such that the commission had to render a conclusion on whether the worker proved entitlement to the permanent partial impairment rating. Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004).

Compensation claimant's impairment rating was proper because, in part, pursuant to subdivision (16)(A) of this section, pain, active range-of-motion, and straight-leg-raising tests could not be used for assessment of impairment in workers' compensation cases. Flowers v. Ark. State Police, 2010 Ark. App. 99, 377 S.W.3d 339 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 247 (Mar. 10, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 350 (June 17, 2010).

Governing law when the Workers' Compensation Commission decided to apply subdivision (4)(A)(i) of this section to appellant's gradual-onset injury was that the section did not apply to gradual-onset injuries. The Commission's decision to apply subdivision (4)(A)(i) to time-bar appellant's claims was a mistake of law. Estrada v. AERT, Inc., 2014 Ark. App. 652, 449 S.W.3d 327 (2014).

Accidental Injury.

Workers' Compensation Commission did not err in awarding an employee temporary total-disability benefits because there was substantial evidence to support its finding that the employee's herniated disc was an accidental injury arising from his employment where the employee's testimony about what happened was corroborated by his supervisor and the documentary evidence in the record and there was no evidence of a non-work related injury or event that contradicted the employee's claim. Pulaski County Special Sch. Dist. v. Laster, 2015 Ark. App. 206, 465 S.W.3d 421 (2015).

Applicability of 1993 Amendment.

Acts 1993, No. 796 did not apply to employee who sustained one injury in 1992 and a second injury in August 1993, where the second injury was not a new injury but a recurrence of the first and thus was merely a second period of incapacitation. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).

Prior to 1993, there was a prima facie presumption under former § 11-9-707(4) that an injury did not result from intoxication of the injured employee while on duty; now however, under subdivision (5)(B)(iv) of this section, the presence of an intoxicant creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of the intoxicant. Weaver v. Whitaker Furn. Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996).

The pre-1993 version of this section did not place on a claimant the burden of proving that there were no physicians licensed in the state who could provide the required treatment before he could seek treatment by an out-of-state physician. Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).

Benefits.

Denial of permanent-total disability benefits to the employee was appropriate pursuant to subdivision (4)(F)(ii)( a ) of this section because all of her physicians had returned her to work full-duty with no restrictions and no medical provider indicated that she was unable to work. Greenfield v. Conagra Foods, Inc., 2010 Ark. App. 292 (2010).

—Major Cause.

Evidence established that an injury was the major cause of an injured worker's impairment rating where a neurosurgeon testified that an on-the-job injury was the major cause of back surgery and that the surgery was the sole cause of the impairment rating. Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998).

Employee's work-related accident was not shown to be the “major cause” of his knee injury, as required by subdivision (4)(F)(ii)( a ) of this section. Substantial evidence showed that the employee had a preexisting degenerative knee condition, particularly in view of his prior knee surgery, degenerative arthritis, and the absence of his medial meniscus and anterior cruciate ligament prior to the more recent surgery, and there was no evidence that the need for knee-replacement surgery and the resulting impairment would not have occurred but for the work-related injury. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008).

Employer's acceptance of a thirteen-percent impairment rating for a workers' compensation claimant satisfied the major-cause requirement and made it unnecessary for the administrative law judge to make a separate, specific major-cause finding. St. Edward Mercy Med. Ctr. v. Gilstrap, 2014 Ark. App. 306 (2014).

Child.

Dependency includes partial dependency unless it is stated to mean total dependency. Crossett Lumber Co. v. Johnson, 208 Ark. 572, 187 S.W.2d 161 (1945) (decision under prior law).

Minor child of deceased natural father was entitled to receive compensation for his death despite adoption by other parties, regardless of whether he was actually dependent on natural father for support. Holland Constr. Co. v. Sullivan, 220 Ark. 895, 251 S.W.2d 120 (1952) (decision under prior law).

Although deceased employee had not been supporting stepson, natural daughter and acknowledged illegitimate child, they were entitled to compensation under this chapter. Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958), superseded by statute as stated in, Pinecrest Mem. Park v. Miller, 7 Ark. App. 185, 646 S.W.2d 33 (1983) (decision under prior law).

Niece or nephew did not qualify for compensation benefits under the statute unless he or she had been classified as a foster child. Ellis v. Ellis, 251 Ark. 431, 472 S.W.2d 703 (1971).

Evidence was insufficient to overcome the presumption against illegitimacy of the children and the judgment of the trial court was reversed and the case remanded to the commission for it to review the evidence in the light of all the definitions of child. Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976).

The addition of the word “actually” in § 11-9-527(c), was intended to change what amounted to a conclusive presumption of dependency under prior cases; it follows that when the child was not living with the employee at the time of his death, there must be some showing of actual dependency. Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979).

The fact of temporary support by mother did not demonstrate that there was no longer any reasonable expectation of support on the part of the father; the child was not able to act for herself and her necessary expenses would naturally increase as she grew older, with the concurrent possibility that her mother would not be able to maintain the child in her accustomed mode of living. Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979).

Evidence sufficient to support the finding of the commission that claimant was not wholly and actually dependent upon decedent. Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

Evidence not sufficient to support the finding of the commission that claimant was not wholly and actually dependent upon the decedent. Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

Claimant did not sustain burden of proof to establish that she was in any manner a “stepchild” or “foster child.” Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

Children were not acknowledged illegitimate children of the deceased. McCoy on behalf of McCoy v. Logging, 21 Ark. App. 68, 728 S.W.2d 520 (1987).

Dependency of a stepchild is not a question of law, but a fact issue to be determined by the circumstances existing when the compensable injury occurs; it is based on proof of either actual support from the deceased employee, or a showing of a reasonable expectation of support where there is evidence that the stepchild is being actually supported by her natural parent, or where she has a right to expect support from the natural parent even if it is not actually provided. Hoskins v. Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136 (1996).

In a workers' compensation case, a deceased employee's stepchildren were properly found to be dependent for purpose of receiving death benefits where the employee had been married to his current wife for two years, the stepchildren resided with them, and his earnings were used to support the stepchildren. Death & Permanent Total Disability Trust Fund v. Myers, 2014 Ark. App. 102 (2014).

Compensation.

The attorney's fees in a workers' compensation case should consist of a percentage of the amounts expended for medical services and hospitalization in addition to a percentage of the cash awarded to the client, since the compensation from which the fees are to be derived include medical and hospital services. Ragon v. Great Am. Indem. Co., 224 Ark. 387, 273 S.W.2d 524 (1954).

The definition of compensation in this section as including medical services and funeral expenses did not preclude future claims for medical expenses under §§ 11-9-50811-9-517 after a lump sum settlement under § 11-9-804 since that provision only contemplated lump sum settlement of such benefits as were susceptible of determination at that time. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Compensation means the money allowance payable to the employee or his dependents and includes medical payments. Mohawk Tire & Rubber Co. v. Brider, 257 Ark. 587, 518 S.W.2d 499 (1975).

“Compensation” includes the furnishing of medicine only to the extent that it is “reasonably necessary” for treatment of the compensable injury. Northwest Tire Serv. v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988).

Where claimant suffered a compensable injury, received medical treatment, returned to his regular job and continued to work until he became totally disabled, claimant is entitled to the maximum weekly benefit rate in effect at the time the disability occurred, and this rate is based on the wages being earned on the date of the accident. Montgomery v. Delta Airlines, 31 Ark. App. 203, 791 S.W.2d 716 (1990).

Denial of the employee's claim for the compensability of a back injury was appropriate under subdivision (4)(B)(iv) of this section because the presence of marijuana metabolites was evidence of the presence of marijuana and the employee failed to overcome the presumption that his injury was caused by the use of illegal drugs. Jackson v. Smith Blair, Inc., 2010 Ark. App. 691, 379 S.W.3d 555 (2010).

One statute only provides the maximum amount of money an employer must pay as compensation for an employee's work-related death, but the statute is silent on whether a credit for good-faith, but ultimately mistaken, payments may be given; because the widow was not her husband's dependent, the money the employer paid her could not be counted as weekly benefits or compensation, and the payments did not accrue as a credit against the employer's responsibility to the Fund. Royal v. Bypass Diesel & Wrecker, Inc., 2014 Ark. App. 90, 432 S.W.3d 139 (2014).

Date or Time of Accident.

Employee sustained a compensable injury, notwithstanding the contention that he failed to report his injury in a timely fashion and failed to seek medical treatment in a timely fashion, since this contention went to the weight and credibility of the testimony and since the definition of a compensable injury does not require timely reporting or timely treatment. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).

Where the claimant was injured in 1977, but was able to continue working without loss of income until two accidents which occurred in 1996, his date of accident was 1996 and his compensation rate would be based on his 1996 earnings. Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998).

Workers' Compensation Commission erred in requiring an employee who claimed to have injured his back at work to prove the exact date on which the injury had occurred; it was sufficient under subdivision (4)(A) that the employee could show that the injury had occurred during a specific four-day period. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001).

Workers' Compensation Commission found that appellant lacked credibility, which was based on her inconsistent reports about the injury, and although the inability to identify a certain date did not operate as a bar to appellant from obtaining compensation, it was within the province of the Commission to consider the date confusion a matter of credibility; the Commission questioned whether the slip and fall at work had taken place, and substantial evidence supported the finding. Swink v. Rest. Mgmt., 2012 Ark. App. 490 (2012).

Disability.

Where, in addition to the loss of use, the permanent partial disability consists also of loss of capacity, because of the injury, to earn wages as defined and set out in subdivision (5); the disability includes, blends with, and is usually greater than the disability occasioned by loss of functional use only. Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968).

The mere fact that the claimant was making as much money at the time of the hearing as he was making prior to his injury did not necessarily mean that he had the “capacity” to earn that much. Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W.2d 166 (1968).

In determining the degree of disability as defined by this section, the mentality of the claimant is material to the wage-loss factor, but congenital mental deficiency does not affect entitlement to compensation because compensation is based on previous earnings and earning capacity and is measured by loss of capacity due to the accident. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978).

Disability means not merely functional disability but also loss of the use of the body to earn substantial wages. Great Plains Bag Corp. v. Ray, 267 Ark. 943, 593 S.W.2d 51 (Ct. App. 1979).

If claimant is totally incapacitated to earn in the same or any other employment the wages he was receiving at the time of his injury, then he is entitled to receive weekly benefits during the continuance of the total disability. Sunbeam Corp. v. Bates, 271 Ark. App. 385, 609 S.W.2d 102 (1980).

The term disability controls compensation awards in all cases of temporary disability except where compensation is statutorily based upon the healing period. Arkansas State Highway & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (Ark. 1981).

Where claimant injured his knee, the injury did not become compensable until claimant suffered a loss of earnings as a result of a nonwork-related injury; thus claim was timely filed. Shepherd v. Easterling Constr. Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983).

A person injured on the job may suffer disability because of a physical loss or because of an inability to earn as much as he was earning when he was hurt and a person can be disabled who has lost either or both. Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983).

Where claimant was earning higher wages at the time of the hearing than he was at the time of the accident, but claimed he could no longer do the work for which he was trained, whether he had a compensable disability was a question for the commission to determine. Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983).

Disability which is compensable is based upon incapacity to earn because of injury; the payment of full wages during a compensable disability does not negate the incapacity to earn but may, in proper circumstances, dispense with the requirement that compensation benefits be paid under § 11-9-807. Arkansas La. Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983).

Where the claimant undisputedly filed to come within the odd-lot category, in order to prove her entitlement to total disability benefits, the burden remains on her to show that she was incapacitated, because of her injury, to earn, in the same or any other employment, the wages she was receiving at the time of the injury. Leslie v. Sanyo Mfg. Corp., 13 Ark. App. 59, 679 S.W.2d 222 (1984).

A person can be disabled if the injury has caused a physical loss or an inability to earn as much as he was earning when he was hurt; an injury must be more than an anatomical disability, but must be a disability in the compensation sense to be a previous disability, requiring apportionment under this chapter. State Treasurer, Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985).

The Workers' Compensation Commission did not err in holding that worker's congenital dyslexia was not “a previous disability or impairment” which gives rise to a claim against the Second Injury Fund under § 11-9-525, where the worker entered the labor market as an unskilled manual laborer, he was pursuing that employment without diminished earning capacity at the time of his injury, and there was no evidence that the claimant could not have continued in the same or similar employment at the same wage he had always earned had it not been for his injury. Holley Enters. v. Nicholls, 19 Ark. App. 97, 717 S.W.2d 495 (1986).

“Disability”, in the workers' compensation sense, is not based upon loss of earnings per se, but rather is defined in terms of loss of earning capacity. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987).

Evidence insufficient to support commission's conclusion that plaintiff was not legally disabled. Boyd v. General Indus., 22 Ark. App. 103, 733 S.W.2d 750 (1987).

A work-related disabling angina attack, although temporary, is no less a disability. Nashville Livestock Comm'n v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990).

Where, although plaintiff would try most any job offered to him, suitable work was not available to him due to a combination of his advancing age, his level of education, his limited experience in one area of the job market, and his disability; therefore he fell within the odd-lot category of workers. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991).

For the purpose of defining disability, “any other employment” means any other employment in lieu of the one in which the employee was injured, not concurrent employment, where an employee is working two jobs when injured, and continues employment in one. Stevens v. Mountain Home Sch. Dist., 41 Ark. App. 201, 850 S.W.2d 335 (1993).

Although the definition of “disability” in subdivision (9) does note include any specific reference to physical impairment, Arkansas case law clearly indicates that both physical and earning impairment are components of “disability.” Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997), aff'd in part, reversed in part, 333 Ark. 41, 969 S.W.2d 154 (1998).

Workers' Compensation Commission erred in determining that claimant was not entitled to temporary total disability benefits after the date he began receiving unemployment benefits as the claim fell within § 11-9-506(b); thus, the case was remanded to the commission for a factual determination regarding whether claimant remained within his healing period and suffered a total incapacity to earn wages after his receipt of unemployment compensation began. King v. Peopleworks, 97 Ark. App. 105, 244 S.W.3d 729 (2006).

Temporary total disability was properly granted in a worker's compensation case due to a disability under subdivision (8) of this section while a claimant remained in his healing period from back surgery and supplemented his income by intermittent work with a family business. He was unable to earn pharmacist wages in other employment. Walgreen Co. v. Goode, 2012 Ark. App. 196, 395 S.W.3d 398 (2012).

Earning Capacity.

When the claimant returns to work and earns as much as or more than he did prior to his injury, then the necessary and logical inference, absent any contrary evidence, is that the claimant has not suffered a loss of earning capacity; thus, where there was no evidence that the claimant was not doing his job well, that his wage increases were the result of sympathy, or that his earnings were not commensurate with his earning capacity, the claimant failed to establish any compensable injury to his earning capacity. Bragg v. Evans-St. Clair, Inc., 15 Ark. App. 53, 688 S.W.2d 956 (1985).

Effect of Amendments.

Until 1993, a prima facie presumption existed that an injury did not result from intoxication of the injured employee while on duty; Acts 1993, No. 796, changed that presumption by deleting former § 11-9-707(4) and amending subdivision (5)(B)(iv) of this section. Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998), review denied, 334 Ark. 35, 970 S.W.2d 807 (1998).

Employee.

In determining whether, at time of injury, individual was an employee or an independent contractor, the act is to be given a liberal construction in individual's favor, and any doubt is resolved in favor of employment status. Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943); Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W.2d 444 (1950) (preceding cases decided under prior law); Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W.2d 888 (1956); Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980); Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 S.W.2d 286 (1982); Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983); Franklin v. Arkansas Kraft, Inc., 12 Ark. App. 66, 670 S.W.2d 815 (1984).

The general rule is that, where the person rendering assistance to another in an emergency has an interest for his employer in relieving the emergency condition, he does not become an emergency employee of the person to whom he renders the assistance. Transport Co. v. Arkansas Fuel Oil Co., 210 Ark. 862, 198 S.W.2d 175 (1947) (decision under prior law).

The original employer remains liable under this chapter until there has been a reasonable time or course of events for knowledge of change of employer to be brought home to the employee, and the relationship of employer and employee is presumed to continue for a reasonable time after a sale of the business made without the knowledge of the employee. Ledbetter v. Adams, 217 Ark. 329, 230 S.W.2d 21 (1950) (decision under prior law).

When a corporate officer's duties involve distinctively nonexecutive, nonsupervisory or even manual work, the Workers' Compensation Act should apply. Benefield Real Estate v. Mitchell, 269 Ark. 607, 599 S.W.2d 445 (Ct. App. 1980).

Claimant held to be an employee and his injuries covered where claimant was injured while working at employer's personal residence. Christian v. Arkansas Crane & Crawler, 55 Ark. App. 306, 935 S.W.2d 1 (1996).

Despite having independent contractor labels and certificates of noncoverage pursuant to subdivision (9)(C) of this section, truck drivers were employees of multiple trucking enterprises owned by one man where the drivers hauled loads exclusively for the owner's motor carriers using trucks leased from the owner's leasing company with the carrier's logo on them and where the drivers were under their direction and authority. Steinert v. Ark. Workers' Comp. Comm'n, 2009 Ark. App. 719, 361 S.W.3d 858 (2009), rehearing denied, Steinert v. Workers' Comp. Comm'n, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 999 (Dec. 16, 2009), review denied, Steinert v. Workers' Comp. Comm'n, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 110 (Feb. 18, 2010).

Deceased worker, who was killed when a felled tree fell on him, was not an employee at the time of the accident, although the employer intended to hire him that day and wages had been discussed, because there was no contract for hire. Therefore, the Workers' Compensation Commission did not have jurisdiction over the worker's estate's claim under subdivision (4)(B)(iii) of this section. Scroggins v. Glen Roberts Excavation, 2010 Ark. App. 84 (2010).

—Casual Employment.

Employment in building or repairing a structure is not to be regarded as casual where the work for which the claimant was engaged will require a considerable length of time for its completion. Buxton v. Dean, 218 Ark. 645, 238 S.W.2d 487 (1951).

Considering the meaning of the word “casual” as used in this section, before an employment is excepted from operation of this chapter, it must be both casual and not in the usual course of the employer's business; therefore claimant injured in the construction of a hangar which was to be used in the company's regular business was regularly employed and not a casual employee. Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 360 S.W.2d 185 (1962).

A blacksmith who shod the employer's horses three or four times a year and was injured by being kicked by such a horse he was shoeing was a casual employee but nevertheless employed in the course of the business of the employer and, therefore, not excluded under subdivision (2). Meek v. Brooks, 237 Ark. 717, 375 S.W.2d 671 (1964).

Insurer was not entitled to have jury told that the term employee included “part time, temporary, casual or otherwise.” Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972).

The casual employee exclusion from coverage applies only where the employment is both casual and not in the course of the trade, business, profession, or occupation of his employer. Purdy v. Livingston, 262 Ark. 575, 559 S.W.2d 24 (1977).

—Election of Noncoverage.

The form established by Commission regulations for a filing pursuant to subdivision (10) of this section is called an “A-18.” Jenny's Cleaning Serv. v. Reddick, 46 Ark. App. 5, 875 S.W.2d 856, 880 S.W.2d 876 (1994), superseded, 319 Ark. 123, 889 S.W.2d 754 (Ark. 1994).

The Arkansas Supreme Court has not decided the question of whether filing the A-18 form notice of election with the commission pursuant to subdivision (2) of this section is essential as a matter of law for coverage under this chapter. Jenny's Cleaning Serv. v. Reddick, 46 Ark. App. 5, 875 S.W.2d 856, 880 S.W.2d 876 (1994), superseded, 319 Ark. 123, 889 S.W.2d 754 (Ark. 1994).

—Evidence.

Evidence held sufficient to establish status as employee. Karcher Candy Co. v. Hester, 204 Ark. 574, 163 S.W.2d 168 (1942); Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600 (1942); Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943); Wood Mercantile Co. v. Cole, 213 Ark. 68, 209 S.W.2d 290 (1948); Feazell v. Summers, 218 Ark. 136, 234 S.W.2d 765 (1950) (preceding cases decided under prior law); South Ark. Feed Mills, Inc. v. Roberts, 234 Ark. 1035, 356 S.W.2d 645 (1962); Garner v. Rogers, 234 Ark. 1069, 356 S.W.2d 418 (1962); McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963); Hale v. Mansfield Lumber Co., 237 Ark. 854, 376 S.W.2d 670 (1964); Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980); Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982); Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1982); Sands v. Stombaugh, 11 Ark. App. 38, 665 S.W.2d 902 (1984).

Evidence held insufficient to establish status as employee. Lockeby v. Ozan Lumber Co., 219 Ark. 154, 242 S.W.2d 115 (1951) (decision under prior law); West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S.W.2d 460 (1961); Charles v. Lincoln Constr. Co., 235 Ark. 470, 361 S.W.2d 1 (1962); Albert Pike Hotel v. Tratner, 240 Ark. 958, 403 S.W.2d 73 (1966); Pearson v. Lake Lawrence Pulpwood Co., 247 Ark. 776, 447 S.W.2d 661 (1969); Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976); Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W.2d 228 (1978); Stewart v. Cosby-Parsons Quarter Horse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ct. App. 1980).

Physician's report diagnosed the workers' compensation claimant with lumbalgia, radiculitis, lumbar subluxation and contained no qualifying words regarding the injury; thus, the physician's report constituted substantial evidence supporting the Workers' Compensation Commission's finding that the claimant sustained a compensable injury under subdivision (4)(D). Wal-Mart Stores, Inc. v. Stotts, 49 S.W.3d 667 (2001), substituted opinion, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Arkansas Workers' Compensation Commission found that, although the manner of a worker's pay was more indicative of an independent contractor, this was outweighed by the control exerted by the business over the worker's assignments. Riddell Flying Serv. v. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005).

—Facts Determining Status.

The determination whether the injured individual is an employee or an independent contractor depends on the facts of each case. Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943); Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W.2d 444 (1950) (preceding cases decided under prior law); Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W.2d 888 (1956); Moore v. Long Bell Lumber Co., 228 Ark. 345, 307 S.W.2d 533 (1957); Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983); Sands v. Stombaugh, 11 Ark. App. 38, 665 S.W.2d 902 (1984); Franklin v. Arkansas Kraft, Inc., 12 Ark. App. 66, 670 S.W.2d 815 (1984).

Evidence that company could discharge claimant at will; that the company required him to increase the number of his crew from time to time; paid social security and unemployment insurance taxes and liability insurance on claimant and his men; and the manner in which the company made loans and advances to claimant and members of his crew, were all facts which the commission had a right to consider in determining the relationship of claimant as an employee. Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W.2d 444 (1950) (decision under prior law).

The power of an employer to terminate the work at any time without liability is incompatible with the full control of the work that is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the worker. Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W.2d 888 (1956).

The withholding of income taxes, social security taxes, and unemployment taxes is not conclusive or determinative, but are merely circumstances to be considered in determining whether claimant is an employee or an independent contractor. Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S.W.2d 167 (1959).

The right of control, and not its exercise, is a factor in determining whether an employer-employee relationship exists. Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W.2d 228 (1978).

In order to make a factual determination of employment status, it may not be enough, in a particular case, to consider only the question of control. Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 S.W.2d 286 (1982).

Some of the factors which might be considered in determining whether an injured person is an employee or an independent contractor, are: (1) the right to control the means and the method by which the work is done; (2) the right to terminate the employment without liability; (3) the method of payment, whether by time, job, piece or other unit of measurement; (4) the furnishing, or the obligation to furnish, the necessary tools, equipment, and materials; (5) whether the person employed is engaged in a distinct occupation or business; (6) the skill required in a particular occupation; (7) whether the employer is in business; (8) whether the work is an integral part of the regular business of the employer; and (9) the length of time for which the person is employed. Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 S.W.2d 286 (1982).

Ordinarily, whether a person is an employee can be determined by the position that person occupies and his relationship to the alleged employer. However, in those cases where a person occupies more than one position, it becomes necessary to consider the type of work that was actually being done by that person at the time of his injury. Fraternal Order of Eagles v. Kirby, 6 Ark. App. 198, 639 S.W.2d 529 (1982).

With respect to the determination of whether a worker is an employee, the factor of the right to control includes several items such as the right to determine the manner of completing the work, right to terminate, right to hire or control the hiring of helpers, the method of payment, and the furnishing of, or the obligation to furnish, tools or equipment necessary to perform the work; in determining the nature of the work relative to the alleged employer's business, some factors to be considered include whether the worker is engaged in a separate and distinct occupation or business, whether the work to be performed is an integral part of the employer's regular business, and the duration of the employment. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).

In determining whether an injured person is an employee or an independent contractor for purposes of workers' compensation insurance, there are a number of factors to be considered; the right to terminate the employment without liability; the method of payment, whether by time, job, piece or other unit of measurement; the right to control the means and the method by which the work is done; the furnishing, or the obligation to furnish, the necessary tools, equipment, and materials. Sands v. Stombaugh, 11 Ark. App. 38, 665 S.W.2d 902 (1984).

County sheriff's department was not liable under subdivision (10)(A) for workers' compensation for a deputy sheriff injured when responding to the department's call; the deputy was the employee of an improvement district, had no express or implied contract for hire with the department, and his compensation came entirely from the district. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001), aff'd, 349 Ark. 20, 75 S.W.3d 690 (2002).

—Minors.

Since former workers' compensation law included a minor whether lawfully or unlawfully employed, a minor employee, though employed in violation of the child labor laws, was relegated to remedies afforded by former law for injuries received and could not maintain an action for damages. Cummings v. J.J. Newberry Co., 211 Ark. 854, 203 S.W.2d 187 (1947) (decision under prior law).

The statutory definition of an employee expressly includes a minor, and common-law rules of dependency do not apply; therefore parent of injured minor was entitled to award. Kimpel v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S.W.2d 932 (1950) (decision under prior law).

—Partners or Proprietors.

The fact that father and son were partners in logging operation did not preclude a finding of an employer-employee relationship between the son and the person with whom the logging agreement was made. Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W.2d 888 (1956).

Evidence supported the commission's finding that the deceased, who died as a result of a work-related injury, was an employee within the meaning of this section, despite the fact that the deceased during the last three years of his life had filed tax returns reflecting that the business was a sole proprietorship. Continental Ins. Co. v. Richard, 268 Ark. 671, 596 S.W.2d 332 (Ct. App. 1980).

The terms “sole proprietor” and “self-employed employer,” as used in the Workers' Compensation Act, are neither synonymous nor interchangeable. Under subdivision (2) of this section, a “sole proprietor” must file written notice with the Workers' Compensation Commission to be included in the definition of an “employee,” while under subsection (b) of § 11-9-108 a “self-employed employer” may agree or contract to exclude himself or herself from coverage. Gilbert v. Gilbert Timber Co., 19 Ark. App. 93, 717 S.W.2d 220 (1986), aff'd, 292 Ark. 124, 728 S.W.2d 507 (1987).

Where it was stipulated that the employer was a sole proprietorship, subdivision (2) of this section was applicable, and the claimant, the owner of the sole proprietorship, was required to file written notice to be included within the definition of an “employee” under the Worker's Compensation Act. Gilbert v. Gilbert Timber Co., 19 Ark. App. 93, 717 S.W.2d 220 (1986), aff'd, 292 Ark. 124, 728 S.W.2d 507 (1987).

Sole proprietor is subject to this section. Gilbert v. Gilbert Timber Co., 292 Ark. 124, 728 S.W.2d 507 (1987).

After 1979, sole proprietors could be considered employees, but only if they elected to be included in the definition of employees and filed their election with the commission. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988).

—Sole Proprietor.

Sole proprietor, who wanted to be covered by workers' compensation insurance and obtained a policy for that purpose, did not necessarily have to file an A-18 form in order to be a covered employee; the employee had substantially complied with this section. Jenny's Cleaning Serv. v. Reddick, 46 Ark. App. 5, 875 S.W.2d 856, 880 S.W.2d 876 (1994), superseded, 319 Ark. 123, 889 S.W.2d 754 (Ark. 1994).

Where the appropriate form to be filed with the commission, in compliance with the notice requirement in subdivision (2) of this section, is a Form A-18, and where sole proprietor never listed herself as such on her workers' compensation insurance application, failed to file a Form A-18, and failed to file any kind of written notice to indicate her election to be included in the definition of “employee” as clearly required under subdivision (2), the sole proprietor did not substantially comply with the statutory requirements. Jenny's Cleaning Serv. v. Reddick, 319 Ark. 123, 889 S.W.2d 754 (Ark. 1994).

—Undocumented Worker.

Workers' Compensation Commission properly determined that an undocumented alien was entitled to temporary total-disability benefits because she suffered a compensable injury when she tripped and fell while performing services for the employer, even if that injury was just an aggravation of a preexisting shoulder spur; claimant's legal status was irrelevant as to whether she could take advantage of the benefits afforded to her by Arkansas law as the statutory definition of employee expressly included any person, whether lawfully or unlawfully employed. Packers Sanitation Servs. v. Quintanilla, 2017 Ark. App. 213, 518 S.W.3d 701 (2017).

Employer.

Under this chapter, the prime contractor is not the employer of an employee of a subcontractor, and becomes the statutory employer liable for compensation only when the subcontractor has failed to provide workers' compensation insurance. Carter v. Fraser Constr. Co., 219 F. Supp. 650 (W.D. Ark. 1963).

Where the owner of construction equipment supplied it for use on a construction project for which he would receive a percentage of the profits and had general supervision of the use of the equipment he was a joint venturer and was exonerated from tort liability as an employer by this chapter. Smith v. Rodgers, 251 Ark. 994, 477 S.W.2d 831 (1972).

By invoking the exclusive remedy provision of the compensation law, joint venturer was discharging his responsibility to claimant as an employee. Lewis v. Gardner Eng'g Corp., 254 Ark. 17, 491 S.W.2d 778 (1973).

Although a sublessee under a trip lease withheld money for compensation coverage to assure that it was paid by the lessee, the sublessee was not estopped from claiming that the lessee trucking company was the employer of the truckdriver for compensation purposes. Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W.2d 228 (1978).

When there is a lease of fully operated equipment for the transportation of cargo on the public highways, the determination of whether the lessee or lessor is the driver's employer for workers' compensation purposes is a question of fact. Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W.2d 228 (1978).

Evidence sufficient to support the commission's finding that the individual defendant should be jointly liable with his two firms and was an employer within the definition of subdivision (1). Richardson v. Rogers, 266 Ark. 980, 588 S.W.2d 465 (Ct. App. 1979).

The question of the minimum number of employees in order to qualify as an employer under this chapter is a factual question for the commission and cannot be disturbed on appeal unless unsupported by substantial evidence. Stewart v. Cosby-Parsons Quarter Horse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ct. App. 1980).

In determining whether an individual is an employer or an independent contractor, the relative nature of the work involves consideration of a combination of factors, all of which are utilized so as to give a clearer picture of the parties' relationship than is possible when only control is considered; control of the manner of performing the work is significant, but, if considered determinative or controlling, may lead to clearly wrong results. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).

Where general employer, a temporary service, assigned claimant to a special employer, there was no separate contract for hire between claimant and his special employer, so special employer did not have to share in paying claimant's workers' compensation benefits. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

Property lessees were properly deemed an employer under subdivision (10) of this section for purposes of a workers' compensation claim by surviving members of a decedent's family, as they had the “right of control” as well as other factors that supported that determination. Grady v. Estate of Smith, 2011 Ark. App. 568, 385 S.W.3d 854 (2011).

Employment.

This chapter was applicable to death of employee killed by a truck while engaged in construction work for private contractor at a military post in this state. Young v. G.L. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477 (1942) (decision under prior law).

The word employment does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113 (1944) (decision under prior law); Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W.2d 323 (1957).

Where employer's principal place of business and scene of operations was in Arkansas but at time of worker's injury part of employer's business was operating out of state, employer's primary operations, under this section, were in Arkansas and the employment did not cease to be carried on within this state by reason of the out-of-state operations. Feazell v. Summers, 218 Ark. 136, 234 S.W.2d 765 (1950) (decision under prior law).

“Course of employment” is defined as relating to the time, place and circumstances under which the injury occurred. Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

Since the premises exception to the going and coming rule had been eliminated, a back injury was not compensable under subdivision (4)(A)(i) of this section where a benefits claimant tripped while emerging from an elevator at her workplace because she was not performing employment services at the time since she had not clocked in or reached her work station; the fact that she had to unlock a door to enter did not render the claim compensable. Moreover, the fact that she had stopped by a break room first did not matter since she had not begun her work day. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007), review denied, 2008 Ark. LEXIS 156 (Ark. Mar. 6, 2008).

Workers' compensation benefits were properly awarded to a claimant, a store manager, under subdivision (4)(A)(i) of this section, after the claimant was injured escorting a 16-year-old employee to her vehicle in the parking lot after dark because watching the young employee to ensure her safety at night benefitted the employer by ensuring the safety of a trained and valuable employee, and by helping establish a record of safety on the premises. CV's Family Foods v. Caverly, 2009 Ark. App. 114, 304 S.W.3d 671 (2009).

In a workers' compensation action, a finding that the employee was not performing employment services when she was injured was inappropriate pursuant to subdivision (4)(A)(i) of this section because she was injured in an area where employment services were expected of her. Checking the mailbox and fax machine at the end of the day advanced the employer's interests and it did not matter that the employee had already clocked out because the testimony proved that she often worked off of the clock and that she checked the mailbox and fax machine each day after clocking out. Barrett v. C.L. Swanson Corp., 2010 Ark. App. 91 (2010).

Finding that the employee failed to prove a compensable injury to her right knee in a workers' compensation action was appropriate pursuant to subdivision (4)(B)(iii) of this section because, at the time that she injured herself, she was merely walking outside to take a smoke break. The employer imposed no work requirements on the employee while she took her breaks and she was not advancing the interests of the employer at the time that she was injured. Haynes v. Ozark Guidance Ctr., Inc., 2011 Ark. App. 396, 384 S.W.3d 570 (2011).

Payroll sheets listed only the worker as an employee in 2011, and the company's owner testified that another individual was not an employee of the company; the Workers' Compensation Commission found the owner's testimony credible, and thus substantial evidence supported the Commission's finding that the company regularly employed only two employees, the worker and the owner, and thus the company did not qualify as an employer under the Workers' Compensation Law. Sammons v. Williams, 2015 Ark. App. 139 (2015).

—Agriculture Farm Labor.

Floriculture and horticulture are embraced within the term agriculture as used in former Workers' Compensation Act. Gwin v. J.W. Vestal & Son, 205 Ark. 742, 170 S.W.2d 598 (1943).

Exemption of agricultural farm labor was not, because of the inclusion of the work “farm,” intended to restrict the exemption to those engaged in the growing of ordinary farm crops. Gwin v. J.W. Vestal & Son, 205 Ark. 742, 170 S.W.2d 598 (1943).

Night watchman at greenhouses for a firm engaged in business described as florists, nursery and farming, was specifically exempted from former Workers' Compensation Act. Gwin v. J.W. Vestal & Son, 205 Ark. 742, 170 S.W.2d 598 (1943) (decision under prior law).

Crop duster airplane pilot employed by an independent contractor who sells crop dusting service to farmers in not an agricultural farm laborer and so is entitled to workers' compensation benefits for injuries arising out of and in the course of his employment. Dockery v. Thomas, 226 Ark. 946, 295 S.W.2d 319 (1956).

Where employee was injured in employer's sawmill business which was located on employer's farm, employee was not engaged in farm labor at the time of the injury. Comer v. Pierce, 227 Ark. 926, 302 S.W.2d 547 (1957).

Defendant who was engaged in the raising of chickens was engaged in agriculture farm labor and thus claimant who received injury arising out of and in the course of employment cannot recover compensation. Franklin v. McCoy, 234 Ark. 558, 353 S.W.2d 166 (1962).

An employer who was engaged exclusively in the hatching and sale of chickens was not engaged in agriculture within the meaning of subdivision (3)(A). McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963).

Agriculture farm labor does not come within the purview of this chapter. McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963).

Employee who is an agricultural farm laborer is excluded from workers' compensation coverage. The question of whether employee is engaged in an “employment” in “agricultural farm labor” is one of law. Griffith v. International Cattle Embryo, Inc., 23 Ark. App. 58, 742 S.W.2d 124 (1988).

Exception of agricultural farm labor is broader than mere cultivation of soil; however, it does not cover farm when it is operated as mere sideline to commercial business. Griffith v. International Cattle Embryo, Inc., 23 Ark. App. 58, 742 S.W.2d 124 (1988).

—Building.

Where person who had engaged in farming rented his farm and built two houses which he intended to rent and supervised their construction, he was engaged in “building or building repair work” within the meaning of this chapter. Buxton v. Dean, 218 Ark. 645, 238 S.W.2d 487 (1951).

—Evidence.

The burden rests upon the party seeking benefits to prove the injury sustained was the result of an accident arising out of and in the course of the employment. Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

—Foreign Jurisdiction.

An Arkansas resident came under this chapter even though his injury occurred in another state in which all of his employment was performed. International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971).

Where Arkansas resident, employed by foreign corporation, was injured on job in another state, evidence sufficient to sustain an award by the commission under this chapter. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975).

Where claimant was injured while working in another state and the only circumstance bearing on jurisdiction was that claimant was an Arkansas resident, and facts connecting the state with the employment per se were entirely lacking, the statutory basis required for the commission's jurisdiction was absent. Patton v. Brown & Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990).

The Workers' Compensation Commission did not have jurisdiction over a claim arising from an injury at a truck stop in Arkansas where (1) the claimant truck driver was an Alabama resident who was hired in Georgia by a Texas company, (2) the employer was not localized in Arkansas and did not maintain an office exercising general supervision and control of its employees while in Arkansas, and (3) the claimant testified only that she “thought” she was making a delivery in Arkansas. Baker v. Frozen Food Express Transp., 63 Ark. App. 100, 974 S.W.2d 487 (1998), substituted opinion, 981 S.W.2d 101 (Ark. Ct. App. 1998).

—Going and Coming Rule.

The going and coming rule provides that, since all persons are subject to the same street hazards while traveling, injuries sustained by employees going to and coming from work cannot ordinarily be said to arise out of and in the course of the employment within the meaning of the workers' compensation law. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987).

Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. Such a claimant falls within the “dual purpose” exception to the “going and coming” rule, and therefore his injuries are compensable. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987).

The basic premise of the going and coming rule is that employees having fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work. Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

Employees whose work entails travel away from the employer's premises are within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

The exception to the going and coming rule permitting recovery for injuries received by employees traveling between two parts of an employer's premises, such as by way of a public street, was applicable where, prior to July 1, 1993 (the effective date of the amendment to subdivision (5)(B)(iii)), employee was struck by a car after parking in employer's parking lot. Wentworth v. Sparks Regional Medical Ctr., 49 Ark. App. 10, 894 S.W.2d 956 (1995).

Even though the going and coming rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment, where the journey is part of the service and/or where the employee furnishes his own conveyance, the employee's travel is usually determined to be within the course of employment. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).

Claimant's injury arose within the course of employment and thus was compensable where her vehicle overturned when she was traveling to her job of providing in-home care. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).

Workers' compensation benefits were denied as employee failed to prove the compensability of his claim because an exception to the “going and coming rule” did not apply simply based on the use of a company vehicle and the fact that the employee was on call the night before; moreover, the premises exception was no longer good law. Farler v. City of Cabot, 95 Ark. App. 121, 234 S.W.3d 352 (2006).

To the extent that the “going and coming rule” prevents recovery for injuries sustained while the employee was furthering the interests of the employer, it is overruled by the Arkansas Supreme Court. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006).

Employee who was following his employer's vehicle so he could locate the jobsite was carrying out the express directions of his employer at the time of his fatal auto accident, even though he was not then engaged in the activity for which he was primarily employed; thus; his death was compensable. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006).

—Newspapers, etc.

A boy delivering newspapers has no Workmen's Compensation under subdivision (3)(A). Clark v. Arkansas Democrat Co., 242 Ark. 133, 413 S.W.2d 629 (1967).

—Number of Employees.

Officers of company counted toward the minimum number of regularly employed employees. Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 360 S.W.2d 185 (1962).

Where employer employed only four employees the commission did not have jurisdiction over him. Lofton v. Bryan, 237 Ark. 376, 373 S.W.2d 145 (1963) (decision prior to 1976 amendment).

Where substantial evidence showed that there was a minimum of five employees who qualified appellant as an employer, he was covered by the compensation law. Donaldson v. Socia, 254 Ark. 158, 492 S.W.2d 253 (1973) (decision prior to 1976 amendment).

The determinative factor in ascertaining the requisite number of employees is whether three persons are regularly employed in the same business. Stewart v. Cosby-Parsons Quarter Horse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ct. App. 1980); Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988).

Minimum number of employees found by combining employees of two related businesses owned by the same employer. Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (1981).

The question of whether the employer has the minimum number of employees in order to subject that employer to the requirements of this chapter is a factual determination for the commission. Mountain Valley Superette, Inc. v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982).

Shareholders held to be employees. Mountain Valley Superette, Inc. v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982).

Where the record showed that only three individuals were involved with the corporation or its operations in any capacity, and the commission found that one was not sufficiently active in the business to be counted as an employee, the employer did not have the number of employees needed for coverage under subdivision (3). Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993).

—Performing Employment Services.

Whatever “performing employment services” may mean in the context of subdivision (5)(B)(iii), it must include the performance of those functions which are essential to the success of the enterprise in which the employer is engaged. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), aff'd, 328 Ark. 381, 944 S.W.2d 524 (1997).

Claimant was not entitled to compensation for slipping and falling on ice in the employer's parking lot; walking to and from one's car, even on the employer's premises, does not qualify as performing services. Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997).

The claimant was performing employment services when he was struck by a vehicle while transporting the results of a physical examination, required by and solely for the benefit of his employer, to the employer. Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997).

Plaintiff was not performing “employment services” at the time of her motor vehicle accident where she drove to a mall on her break for a personal errand and was injured on her way back to work. Coble v. Modern Bus. Sys., 62 Ark. App. 26, 966 S.W.2d 938 (1998).

Employee, who tripped over a rolled-up carpet while exiting an elevator while on the way to a designated smoking area in the building in which she worked, was not performing employment services. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).

A school custodian was performing employment services when he fell while entering his school upon his arrival at the start of his work day, where the custodian testified that one of his duties was to disarm the alarm system when he entered the building. Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998).

An employee was performing employment services when he slipped and fell while on his way to an area adjacent to his work station so that he could smoke a cigarette during his work break as the employee was forced to remain near his immediate work area because no relief worker was available. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).

When an employee is doing something that is generally required by his or her employer, the claimant is providing employment services. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).

A claimant was performing an incidental activity which was inherently necessary for the performance of his primary employment activity; therefore, the claimant was entitled to benefits where he fell while moving items from a truck with a spring ride suspension system to a truck with an air ride suspension system. Ray v. Wayne Smith Trucking, 68 Ark. App. 115, 4 S.W.3d 506 (1999).

An employee was not performing employment services when he was involved in an automobile accident while traveling to his place of employment on a Monday morning since (1) although he had some contracts in the car which he had worked on during the weekend, neither working on those contracts over the weekend nor transporting them in his car was something he was required to do as part of his job or even something that his employer had asked him to do, and (2) a cellular telephone call made by the employee to his employer to inform them that he would be late was no more than a common courtesy. Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000).

It is patently improper to summarily pronounce that all claims involving “personal comfort” or “personal convenience” accidents are outside the course of employment and, therefore, are non-compensable without regard for the underlying facts; by the same logic, it is improper to hold that all personal-comfort or personal-convenience accidents are within the course of employment and are compensable, no matter what the facts in individual cases may be; it should be common knowledge that determining the relevant factors for finding the facts in disputed cases under subdivision (4)(B)(iii), is a singularly judicial function rather than legislation. Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).

The “employment services” requirement of subdivision (4)(B)(iii), simply reflects the broader requirement that an accident must occur in the course of employment to be compensable; although it is true that “personal comfort” or “personal convenience” cases raise the “employment services” question, workers are entitled to compensation benefits based on injuries from accidents that occurred when they are not performing actual job tasks, and even when the accident occurred away from the employer's premises; the fact that a worker is injured while attempting to satisfy a personal need is not, per se, dispositive regarding whether she was performing employment services when the accident occurred; similarly, the fact that a worker is not directly compensated for the activity engaged in when an accident occurs for which workers' compensation benefits are sought is not controlling as to whether the worker was performing employment services; on the other hand, merely walking to and from one's car, even on the employer's premises, does not automatically constitute performing employment services. Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).

Workers' Compensation Commission erred in construing subdivision (4)(B)(iii) to require a denial of benefits where worker went to office restroom on next floor becaue the one on her floor was occupied, and upon returning to her desk, fell and hurt her back. Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).

Where employee was performing an incidental activity, inherently necessary for the performance of her job, an injury that occurred was compensable and did not provide a basis to circumvent the exclusive remedy provisions of § 11-9-105 so that she could file a civil action against her employer. Privett v. Excel Specialty Prods., 76 Ark. App. 527, 69 S.W.3d 445 (2002).

Employee who was struck by a cart being pushed by a co-worker while the employee was placing her purse in her locker before returning to work after a scheduled break was performing employment services within the meaning of subdivision (4)(b)(iii) of this section and was entitled to workers' compensation for her injury. Wal-Mart Stores v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002).

Employee's injury, suffered from a fall near a time clock, was compensable because the employee was performing employment services at the time of the accident; the evidence showed that the employer required the employee to show an identification badge at two stations, walk down a hallway, and punch a time clock, and it was not determinative that the employee was not paid for performing such duties. Caffey v. Sanyo Mfg. Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004).

Fact that claimant was coming off a break when his injury occurred did not determine compensability, but rather, because claimant was crossing a board which was placed over a ditch for that purpose, in order to return to work, the claimant's action in crossing the board was an activity that directly advanced his employer's interests and constituted employment services; because claimant was performing employment services at the time of his injury, an award of benefits was required under subdivision (4)(A)(i) of this section. Wallace v. West Fraser South, Inc., 90 Ark. App. 38, 203 S.W.3d 646 (2005), aff'd, 365 Ark. 68, 225 S.W.3d 361 (2006).

Where evidence showed that employee was strongly encouraged to take her breaks in the employee lounge, the injuries employee sustained as she was walking to the lounge were compensable; employee was performing employment services within the meaning of subdivision (4)(B)(iii) of this section. Wal-Mart Stores, Inc. v. King, 93 Ark. App. 101, 216 S.W.3d 648 (2005).

Employee's injury was compensable where, with the agency's knowledge and implicit consent, she was clearly performing a service for her own agency client that she was specifically contracted to perform and did so during her agency-scheduled hours; it was manifestly unjust to deny employee benefits where she was injured performing a service for which she could lose her job had she not performed these same services. Brotherton v. White River Area Agency on Aging, 93 Ark. App. 432, 220 S.W.3d 219 (Dec. 14, 2005).

Employee was performing employment services at the time of her injury at an offsite meeting where the employer hosted the event, considered it mandatory, and paid employees to attend, and the employee was engaging in conduct permitted and anticipated by the employer; thus, the employee was entitled to benefits. Engle v. Thompson Murray, Inc., 96 Ark. App. 200, 239 S.W.3d 561 (2006).

Workers' Compensation Commission's decision displayed a substantial basis for denying compensability because appellant was not performing employment services at the time of the motor-vehicle accident as she was not compensated for driving to work; she was not required or expected by her employer to provide groceries for her clients; she acknowledged that on the day of the accident her clients' father had not asked her to stop and purchase groceries; and she was not grocery shopping or doing anything related to her job as a personal-care aide at the time of her injury as she was merely traveling to work. Black v. First Step, Inc., 2014 Ark. App. 341 (2014).

In a workers' compensation case, a claimant failed to prove that he suffered a compensable injury because he was not performing employment services at the time that he injured his ankle when attempting to go to the bathroom; the claimant's work day had ended and he was not required to do anything, so he was not taking a necessary bathroom break. Moreover, the claimant was not considered a residential employee since the injury did not occur in his truck and was not related to sleeping in his truck. Trezza v. USA Truck Inc., 2014 Ark. App. 555, 445 S.W.3d 521 (2014).

—Police Officer.

Policeman who was prohibited from performing his duties as an officer because of a suspension, and who was injured during a drug raid, a prohibited act not only forbidden by his written suspension but unknown to and unaccepted by his superior, was acting outside the scope and course of his employment when he was injured. Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994), rehearing denied, 46 Ark. App. 320, 879 S.W.2d 473 (1994).

—Political Subdivisions.

School districts fell within the provision of subdivision (3)(A) excluding political subdivisions of the state from coverage. Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961).

School district was not a state agency and its employees were not state employees within the meaning of § 11-5-309 extending this chapter to employees of the state and its agencies. Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961).

This chapter does not provide coverage for teachers in the public schools. Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961).

—Public Charities.

The Workers' Compensation Commission, in its finding that a hospital was not an exempt public charity, was not supported by substantial evidence. Marion Hosp. Ass'n v. Lamphier, 15 Ark. App. 14, 688 S.W.2d 322 (1985).

Fees paid to a voluntary ambulance service by the county emergency medical services district did not prevent the service, as a matter of law, from being an institution maintained and operated “wholly” as a public charity, and there was substantial evidence to support the decision that the service was exempt from liability under the workers' compensation law because of the exception provided by subdivision (3)(A)(iii). Sloan v. Voluntary Ambulance Serv., 37 Ark. App. 138, 826 S.W.2d 296 (1992).

—Subcontractor.

A cleaning service that cleaned for a company which required their subcontractors to carry workers' compensation insurance or allow a percentage to be taken from their checks to cover workers' compensation insurance under its policy was subject to the Workers' Compensation Act by virtue of being a subcontractor employing one or more employees under former subdivision (3)(D) (see now subdivision (12)(D)) of this section. Jenny's Cleaning Serv. v. Reddick, 46 Ark. App. 5, 875 S.W.2d 856, 880 S.W.2d 876 (1994), superseded, 319 Ark. 123, 889 S.W.2d 754 (Ark. 1994).

Summary judgment entered in favor of the United States Postal Service (USPS) was reversed as the USPS could not be considered a special employer of the injured contractor's employee when there was no evidence of an express or implied contract between the employee and the USPS. Phillips v. United States, 422 F.3d 709 (8th Cir. 2005).

Employment Services.

There was no err in finding that the decedent's death was compensable under workers' compensation, because it was undisputed that the decedent was within the time and space boundaries of his employment, and finished with his break and en route to receive further instructions, which constituted performance of employment services. Mitchell v. Tyson Poultry, Inc., 104 Ark. App. 327, 292 S.W.3d 848 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 723 (Mar. 18, 2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 483 (June 4, 2009).

In a case in which an employer appealed a decision by the Arkansas Workers' Compensation Commission awarding benefits in favor of an employee, she was not performing employment services at the time she fell and sustained her injury while on a smoke break; rather than waiting in line as directed by her employer to receive her paycheck, she took a purely personal break, and there was no evidence that she was on-call during the break. The decision of the Commission was not supported by substantial evidence. Jonesboro Care & Rehab Ctr. v. Woods, 2010 Ark. App. 236, 374 S.W.3d 193 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 313 (Apr. 7, 2010), superseded, 2010 Ark. 482 (2010).

Evidence.

Fair-minded persons could not reach the Workers' Compensation Commission's conclusion to deny benefits to a worker who claimed injuries to his back and right leg resulting from a work-related accident because: (1) the worker's testimony, corroborated by his supervisor, was that he did not suffer from back or right leg problems prior to the accident; (2) the commission's finding that there was no “documented report” of the worker's back complaints until six months after the work incident was unsupported; and (3) the absence of testimony from representatives of the employer's workers' compensation carrier, who were within the employer's control, raised the presumption that their testimony would have been unfavorable to the employer. Barnes v. Greenhead Farming, 101 Ark. App. 129, 270 S.W.3d 873 (2008), rehearing denied, Barnes v. Greenhead Farming, Inc., — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 160 (Feb. 13, 2008).

Record did contain objective medical findings sufficient to establish compensability, and the Arkansas Workers' Compensation Commission did not err in finding that the employee proved compensability or in relying on the physician's impairment rating; giving the physician's testimony its maximum effect, as the substantial-evidence standard required the appellate court to do, this would place the employee at the end of his healing period no later than July 28, 2007. United Farms, Inc. v. Gist, 2009 Ark. App. 717, 374 S.W.3d 23 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 998 (Dec. 9, 2009), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 94 (Feb. 12, 2010).

Employee was properly awarded workers' compensation benefits under subdivision (4)(D) of this section because the employee had proven a compensable injury to the employee's left elbow and was entitled to all reasonably necessary medical treatment related to the injury; the employee's physician stated that the injury was greater than 51 percent caused by the initial injury at work and failed conservative treatment necessitating surgical repair. Pafford Med. Billing Servs. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921 (2011).

Substantial evidence supported the Workers' Compensation Commission's decision to award additional treatment for a knee injury given its findings that the symptoms of sciatica resulting from the knee injury, as opposed to a back injury, and anything related to it should have been covered. Wright v. Conway Freight, 2014 Ark. App. 451, 441 S.W.3d 45 (2014).

Healing Period.

The court's finding that an employee's healing period had not ended was improper, where it was based at least in part, upon a response by a rehabilitation agency to the court's personal inquiry whether that agency could undertake a therapeutic work program for the employee. Bibler Bros. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (1979).

Temporary total disability and the healing period in workers' compensation cases are not the same time periods in all cases; temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages under subdivision (5) and § 11-9-519. Arkansas State Highway & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (Ark. 1981).

The determination of when the healing period has ended is a factual determination that is to be made by the commission; if that determination is supported by substantial evidence, it must be affirmed on appeal. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), superseded by statute as stated in, Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984); Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996) (decided under prior law) CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993); Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition, the healing period has ended; the persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), superseded by statute as stated in, Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984) (decided under prior law) Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

Since injured claimant's healing period had ended, claimant could not be entitled to additional temporary total disability benefits. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), superseded by statute as stated in, Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984) (decided under prior law) Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).

The Workers' Compensation law does not authorize award of current total or limited total disability benefits after the end of the healing period. The concept of current total disability benefits seems to have been based on McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966); to the extent that McNeely has been interpreted as holding that temporary benefits regardless of how they are denominated may be paid after the end of the healing period that interpretation is erroneous. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).

Recurring symptoms may give rise to a subsequent healing period, after the original one has ended. Where a second complication is found to be a natural and probable result of the first injury, the employer remains liable, and this liability includes liability for additional temporary benefits when the employee undergoes a second, distinct healing period. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).

A healing period has not ended so long as treatment is administered for the healing and alleviation of a condition. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993); Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).

Employee's healing period ended a year and a half after he failed to lose the amount of weight necessary to allow treatment of his underlying injury. Shepherd v. Van Ohlen Trucking, 49 Ark. App. 36, 895 S.W.2d 945 (1995).

The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).

Substantial evidence supported commission's conclusion that the employee had not reached the end of his healing period. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).

Healing period held to end three months after surgery on an entrapped nerve. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).

Evidence did not support the commission's finding that the healing period for the claimant's injured wrist had ended. Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).

The healing period in which a claimant suffers a complete inability to earn wages includes the time until the employee is as far restored as the permanent character of the injury will permit; once the underlying condition is more stable and will not improve with further treatment, the healing period is over. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

Whether a claimant's healing period has ended is a factual question that is resolved by the workers' compensation commission. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

Employee was still within her healing period and entitled to an award of temporary total disability benefits where only one of several doctors determined that she had reached maximum medical improvement; other doctors had diagnosed her with spinal stenosis, an acute, severe back pain secondary to a partially ruptured disc, herniation, and disc degeneration with posterior annular tears, and had noted that employee was unable to work since the time of injury, although several attempts had been made for her to return to work. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

Temporary total disability benefits were properly awarded to employee who fell off a ladder and landed on a concrete floor where she presented substantial evidence that she was temporarily totally disabled and in a healing period, as defined by subdivision (12) of this section, from the time of injury until the day she was released to return to work. Fred's, Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005).

Arkansas Workers' Compensation Commission's decision that employee was not entitled to temporary-total-disability compensation was reversed as none of the doctors who testified at the hearing agreed that employee had reached the end of his healing period. Clairday v. The Lilly Co., 95 Ark. App. 94, 234 S.W.3d 347 (2006).

Finding against the employee in his workers' compensation action was appropriate under subdivision (12) of this section and § 11-9-526 because there was substantial evidence to support the finding that the employee failed to avail himself of the opportunity to work and that he was not entitled to temporary disability after May 8, 2008. A release to work stated that the employee be provided jobs within his sedentary restrictions and both the employee and his manager testified that he left that work with various complaints of inability to perform. Watts v. Sears Roebuck & Co., 2011 Ark. App. 529, 386 S.W.3d 19 (2011).

Employee's misconduct, which resulted in termination, did not amount to a refusal of suitable employment for the purpose of receiving TTD benefits from April 28, 2008 through August 6, 2008; the employee proved that the employee was still in the healing period under subdivision (12) of this section and was totally incapacitated from earning wages. Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16 (2012), superseded, 2012 Ark. 118, 388 S.W.3d 16 (2012).

Arkansas Workers' Compensation Commission did not err in finding that an employee proved entitlement to additional medical and TTD benefits under subdivision (12) of this section for a lower back injury that was sustained while working as a concrete finisher; the medical evidence and the employee's testimony demonstrated that the employee remained within the healing period since the date of the injury. Webb v. Webb, 2012 Ark. App. 207 (2012).

Workers' Compensation Commission did not err under subdivision (12) of this section in failing to award an employee temporary total disability benefits beyond March 9, 2010 because there was a substantial basis for its finding that the employee's healing period for the compensable back injury had ended by March 9, 2010. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546, 423 S.W.3d 664 (2012).

Workers' Compensation Commission's opinion displayed a substantial basis for the denial of the employee's claim for an additional period of temporary total-disability benefits because the Commission exercised its duty to assess the weight and credibility of evidence regarding whether the employee's healing period had ended and whether he was totally incapacitated from earning wages, and substantial evidence supported the factual findings that the healing period ended by February 2011 and that the employee was not totally incapacitated from earning wages. Jordan v. Home Depot, Inc., 2013 Ark. App. 572, 430 S.W.3d 136 (2013).

Substantial evidence supported the denial of additional temporary total disability where, just prior to his release to return to work, the claimant underwent a functional capacity evaluation that reflected that he had put forth an unreliable effort, the ALJ noted that there were multiple examples of inconsistency in effort contained in the report, and mere days days after being cleared for work, the claimant resigned. Bankston v. Univ. of Ark. at Little Rock, 2017 Ark. App. 72, 510 S.W.3d 825 (2017).

Workers' Compensation Commission did not err in determining the end date for the driver's healing period as it noted and compared the physicians' opinions and found that the evidence, including the surveillance footage, showed the driver able to walk, bend, and drive a vehicle. Marten Transp., Ltd. v. Morgan, 2017 Ark. App. 608, 532 S.W.3d 139 (2017).

Award of temporary total disability for a limited period of time was appropriate because there was no medical evidence that the claimant was incapacitated from earning wages after the end of the time period, based on the only medical document addressing the issue, which was an off-work slip from a doctor taking the claimant off work for the limited period of time. There was no medical opinion expressing that claimant was incapacitated from work at any time after that period, and no doctor took him off work beyond the end date of that period. Wall Farms, LLC v. Hulsey, 2017 Ark. App. 624, 534 S.W.3d 771 (2017).

Workers' Compensation Commission properly reversed the administrative law judge's decision granting temporary total disability benefits to a claimant who slipped and fell on her hands and knees when she was at work on April 22, 2016, because claimant was determined to have reached maximum medical improvement on April 25, 2016, she failed to prove any other compensable injuries other than those to her right arm and left knee, she had been released to return to work, and her own testimony established that her noncompensable back injury was the reason she could not return to work. Davis v. Remington Arms Co., 2018 Ark. App. 390, 557 S.W.3d 894 (2018).

Substantial evidence supported the Workers' Compensation Commission's finding that the surgery performed on the worker was reasonable and necessary and that she remained in her healing period and was entitled to temporary total disability benefits. The authority of the Commission to resolve conflicting evidence extends to medical testimony; thus, the Commission acted within its authority in giving more weight to one doctor's recommendation for surgery than to another doctor's recommendation for a delay, and the award corresponded to both doctors' opinions that the worker had not reached maximum medical recovery. Cent. Moloney, Inc. v. Scoles, 2018 Ark. App. 561, 565 S.W.3d 134 (2018).

Temporary total disability benefits beyond a specific date were properly denied given evidence that the claimant's healing period for his compensable cervical and thoracic strains ended on the date that a physician opined that he had reached maximum medical improvement and the lack of evidence linking the claimant's syrinx to his compensable injury. Page v. Southwestern Bell Tel. Company/AT&T, Inc., 2019 Ark. App. 521, 590 S.W.3d 740 (2019).

Workers' Compensation Commission's decision denying a claimant's request for additional temporary total disability benefits was supported by substantial evidence where three medical opinions that his cervicothoracic syrinx was not causally related to his work-related motor vehicle accident conflicted with a fourth physician's report, and the Commission had accepted the medical opinions finding no causal relationship. Page v. Southwestern Bell Tel. Company/AT&T, Inc., 2019 Ark. App. 521, 590 S.W.3d 740 (2019).

Injury.

Deceased worker's statutory beneficiaries were entitled to recover workers' compensation benefits under § 11-9-527 because a compensable injury was suffered under subdivision (4)(A)(i) of this section when the worker died in a fire in her living quarters at a hotel where she was employed, even though she was off-duty at the time. Under the increased-risk doctrine for residential employees, the worker's fatal injury was compensable as a residential employee who indirectly advanced the interests of her employer. Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007).

Where a benefits claimant did not show a specific incident at work that caused him to have tingling and burning in his hands, he failed to demonstrate that he had a compensable accidental injury under this section; the injury could have been sustained in a 1995 fall or any other time. Weaver v. Nabors Drilling USA & F.A. Richards & Assocs., 98 Ark. App. 161, 253 S.W.3d 30 (2007).

Reversal of an award of workers' compensation benefits to the employee was appropriate pursuant to subdivision (4)(E) of this section because she failed to prove a compensable injury by a preponderance of the evidence. The Workers' Compensation Commission determined that the employee was not a credible witness, and it noted the medical opinions of two doctors who testified that the employee's work activity did not cause or aggravate her carpal tunnel syndrome. Stutzman v. Baxter Healthcare Corp., 99 Ark. App. 19, 256 S.W.3d 524 (2007).

Workers' compensation benefits were properly awarded to an employee where the employee's knee injury was accidental under subdivision (4)(A)(i) of this section; there was uncontradicted evidence that the employee had to climb the stairs regularly. There was no dispute that the employee did not have any problems with the knee when the employee started work in the morning. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007), aff'd, 372 Ark. 233, 273 S.W.3d 473 (2008).

Knee injury was compensable under subdivision (4)(A)(i) of this section where a workers' compensation claimant testified that he felt pain while descending a flight of stairs at work; the claimant's testimony was found to be credible, and he testified that he was required to ascend and descend multiple flights of stairs per day during a 12-hour shift. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).

Court of appeals erred in overturning an award of workers' compensation benefits to an employee who was struck by a gate and pinned under it where, in attempting to unlock the gate and provide access to a back entrance to a parking lot, the employee was advancing the employer's interests by allowing other workers to enter or exit the parking lot; the employee sustained a compensable injury under subdivision (4)(A)(i) of this section. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).

Where the employee was involved in a motor vehicle accident while riding to get a tractor from another job site, the fact that the employee was directly advancing his employer's interests trumped any application of the going-and-coming rule. The Court of Appeals of Arkansas held that the injury arose out of and in the course of employment for purposes of subdivision (4)(A)(i) of this section; the fact that the employee was not being paid at the time of the accident was of no consequence. Witt v. Allen & Son, Inc., 2009 Ark. App. 561 (2009).

Where claimant was bitten by a horse while working at racing stables, she obtained jobs with other employers and continued to seek medical treatment for her arm. The Arkansas Workers' Compensation Commission did not err by denying her claim for benefits one year after the horse bite, because the record showed no causal connection between the horse bite and claimant's physical scars or the assessment of radial palsy; therefore, claimant failed to meet her burden of proving a compensable injury under subsection (4) of this section. Cossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, 344 S.W.3d 684 (2009).

There was evidence that an employee told another employee and a doctor that the employee's back injury occurred over a weekend while bike riding, the employee had never stated to either the company doctor or the employee's own doctor that the source of the back injury was caused by repetitive job duties and/or by specific incident, and the Workers' Compensation Commission did not find the employee's testimony as to the work-related source of the back injury credible; therefore, under either subdivision (4)(A)(i) or (ii) of this section, the employee had not met her burden of proving a compensable work-related injury. Alecia Clark v. San Antonio Shoes, Inc. Commerce Indust. Ins. Co., 2009 Ark. App. 689 (2009).

Under subdivision (4)(B)(iv)( a ) of this section, the employee's injury was not compensable as the accident was substantially occasioned by the use of methamphetamine; the doctor testified that enough methamphetamine was circulating in the employee' system at the time of the accident and would have affected his judgment. Hickey v. Gardisser Constr., 2009 Ark. App. 725, 377 S.W.3d 259 (2009).

When the employee's left shoulder was injured when a door-hanging mechanism fell, three co-workers witnessed the incident and it was immediately reported to his supervisor; after surgery, a doctor assessed a five-percent whole-person-impairment rating. The Arkansas Workers' Compensation Commission's decision that he sustained a compensable injury under subdivision (4)(D) of this section was supported by the evidence; he was entitled to temporary-total-disability benefits. Potlatch Corp. v. Word, 2009 Ark. App. 772, 359 S.W.3d 426 (2009).

Arkansas Workers' Compensation Commission had a substantial basis upon which to deny a claim for additional medical and temporary-total disability benefits because the workers' compensation benefits claimant underwent two MRIs, and there were new objective findings on the second MRI, according to the radiologist who reviewed both MRIs, and the doctor related claimant's need for treatment to the new injury; the Commission, reviewing the evidence de novo, found that no causal connection between the primary injury and the subsequent disability was shown, eliminating the need to address claimant's conduct. Griffith v. Medcath, Inc., 2009 Ark. App. 777 (2009).

Substantial evidence supported the Workers' Compensation Commission's decision that a claimant, who stepped outside a seminar room to smoke a cigarette, was performing employment services at the time of her injury. A reasonable person could reach the same decision as the Commission and find that the claimant was continuing to advance her employer's interests, at least indirectly, by remaining on the premises until she had received her paycheck, filled out any necessary paperwork, and clocked out. Jonesboro Care & Rehab Ctr. v. Woods, 2010 Ark. 482 (2010).

Arkansas Workers' Compensation Commission erred in finding that an employee was not performing employment services for her employer when she was injured at the beginning of a mandatory break because the employee was doing something generally required by the employer; by the employer's own admission, the mandatory breaks were given so that all employees could take care of personal business, including getting something to drink or using the restroom, at the same time, which provided a direct benefit to the employer, and while the employee was not required to work during her break, she was required to take a break because the plant shut down. Dearman v. Deltic Timber Corp., 2010 Ark. App. 87, 377 S.W.3d 301 (2010).

In a case in which a workers' compensation claimant fell and broke her hip when she stepped outside to revive herself, the Arkansas Workers' Compensation Commission's determination that the claimant was not performing employment services at the time of her injury was not supported by substantial evidence. The claimant testified that she exited the building for the sole purpose of regaining alertness, that testimony was supported by all of the evidence, and there was no evidence that she stepped outside the hospital for any purpose related to her own personal comfort or convenience. Hudak-Lee v. Baxter County Reg'l Hosp., 2010 Ark. App. 121 (2010), vacated, 2011 Ark. 31, 378 S.W.3d 77 (2011).

Decision of the Arkansas Workers' Compensation Commission to award an employee benefits for medical treatment and temporary total disability was supported by substantial evidence because it was for the Commission to determine the credibility of the employee's testimony, and it accepted as credible the employee's version of events; although the employee could not recall the exact location of the incident and did not immediately report the injury to his supervisor, the Commission found credible his claim that he jarred his back when he stepped off of a sidewalk. Mack-Reynolds Appraisal Co. v. Morton, 2010 Ark. App. 142, 375 S.W.3d 6 (2010).

Finding against the employee in his workers' compensation action was appropriate pursuant to subdivisions (4)(A)(i) and (B)(iii) of this section because he was not engaged in employment services at the time of his injury. At the time of the injury the employee had completed his daily tasks and had clocked out; he also stated that he was neither on call nor subject to being recalled into the plant. Rhodes v. Commercial Metals Co., 2010 Ark. App. 198 (2010).

Finding in a workers' compensation action that the employee failed to prove that she sustained a compensable injury to her left knee when she slipped and fell at work was improper pursuant to subdivisions (4)(A)(i) and (4)(B)(iii) of this section because substantial evidence did not support the conclusion that the employee's hug was a deviation and that the deviation was not complete at the time of her fall. Wood v. Wendy's Old Fashioned Hamburgers, 2010 Ark. App. 307, 374 S.W.3d 785 (2010).

Arkansas Workers' Compensation Commission erred in finding that an employee established that she sustained a gradual-onset injury to her right shoulder and in awarding her benefits because there was a lack of substantial evidence supporting its opinion that the employee's bus driver job duties were rapid and repetitive; while the evidence of the employee's opening and closing the bus door touched on the repetitive nature of her job, there was no evidence about the time interval between each event, and that evidence failed to establish the rapidity requirement of subdivision (4)(A)(ii)( a ) of this section. Pulaski County Special Sch. Dist. v. Stewart, 2010 Ark. App. 487, 375 S.W.3d 758 (2010).

Substantial evidence supported Arkansas Workers' Compensation Commission's finding that a claimant's climbing a ladder two to three times a day, two to three days a week, was not rapid, repetitive motion for purposes of compensability under subdivision (4)(A)(ii)( a ) of this section. Jenkins v. It's Fashion, 2010 Ark. App. 746, 379 S.W.3d 630 (2010).

Arkansas Workers' Compensation Commission properly held that an employee failed to prove that the employee sustained a compensable injury to the employee's elbow under subdivision (4)(A)(i) of this section because treatment notes reflected that the employee complained of shoulder pain and popping; a physician's report stated that an examination of the elbow showed full and painless range of motion with no crepitating. Morgan v. Highland Window, 2010 Ark. App. 797 (2010).

Arkansas Workers' Compensation Commission's finding that a claimant did not suffer a compensable injury when she fell and broke her hip during her break because she was not performing employment services was not supported by substantial evidence. By taking a short break to revive herself in order to complete her shift, she was advancing the interests of her employer. Hudak-Lee v. Baxter County Reg'l Hosp. & Risk Mgmt. Res., 2011 Ark. 31, 378 S.W.3d 77 (2011).

Workers' compensation benefits were properly awarded to an employee, a truck driver, for a compensable injury in the form of a heart attack, pursuant to subdivision (14)(A) of this section; although the employee had previously assisted, on a single occasion, with changing a mud flap, the employee had not been required to perform such a duty in as hot an environment as that present on the day in question. The employee replaced it alone with less than ideal tools for the job. J Mar Express, Inc. v. Poteete, 2011 Ark. App. 122, 381 S.W.3d 159 (2011).

Claim for workers' compensation benefits for a knee injury was properly denied under subdivisions (4)(A)(i), (D), and (E)(i) of this section because the employee failed to prove that the injury occurred in the course of employment; employee's supervisor testified that the employee stated that the employee had gout in the knee and had hurt the knee playing football when the employee was younger. Montgomery v. J & J Lumber Co., 2011 Ark. App. 129 (2011).

Claimant's action for workers' compensation benefits was properly denied as he failed to establish a compensable injury pursuant to subdivision (4) of this section. The claimant did not offer evidence of objective medical findings that established that an on-the-job incident aggravated his preexisting medical condition. Grothaus v. Vista Health, L.L.C., 2011 Ark. App. 130, 382 S.W.3d 1 (2011).

Substantial evidence supported the Arkansas Workers' Compensation Commission's denial of benefits to a claimant on the ground that the claimant had failed to establish that he sustained a compensable back injury as a result of a fall or from performing numerous strenuous activities during his employment as the claimant did not report a back injury to the employer until nearly three months after his fall, and he did not relate the injury to his fall or any specific incident at work. Moreover, the claimant had worked for the employer for only one and a half years while he had performed equally strenuous work for another employer for twenty-seven years, and he reported back pain several years before he began working for the employer. Smith v. Commercial Metals Co., 2011 Ark. App. 218, 382 S.W.3d 764 (2011).

Finding that the employee failed to prove a compensable injury to her right knee in a workers' compensation action was appropriate pursuant to subdivision (4)(A)(i) of this section because, at the time that she injured herself, she was merely walking outside to take a smoke break. The employer imposed no work requirements on the employee while she took her breaks and she was not advancing the interests of the employer at the time that she was injured. Haynes v. Ozark Guidance Ctr., Inc., 2011 Ark. App. 396, 384 S.W.3d 570 (2011).

Sufficient evidence in the record supported the Arkansas Workers' Compensation Commission's finding that an employee's exposure to cobalt dust while at work aggravated his preexisting chronic obstructive pulmonary disease where, in addition to the medical opinions regarding causation, an Occupational Safety and Health Administration study found that the amount of dust in the workplace exceeded acceptable limits, the employee testified that the employer's overhead-exhaust system was not functioning for a period of time while he was exposed to dust, and there was also testimony that an employee who held the employee's job prior to him likewise experienced breathing problems. Qualserv Corp. v. Rich, 2011 Ark. App. 548 (2011).

Award of temporary total disability benefits to an employee was supported by substantial evidence that the injury arose out of and in the course of employment, and that it was the major cause of the disability or need for treatment pursuant to subdivision (4)(E)(ii) of this section. Cooper Tire & Rubber Co. v. Strickland, 2011 Ark. App. 585 (2011).

Workers' compensation claimant did not show that he suffered a compensable injury under subdivision (4)(A)(i) of this section, as a radiologist stated that the x-rays taken immediately after the work-related incident did not show that the condition of the claimant's knee was any worse or different than it was two years before. Kelley v. Courtyard Marriott, 2011 Ark. App. 715, 386 S.W.3d 677 (2011).

Finding that the employee's injury was not the result of rapid repetitive motion was inappropriate pursuant to subdivision (4)(A) of this section because he was required to walk back and forth across a field over and over all day long and that repetitive motion met the requirement of being rapid as well. The only reasonable conclusion was that the fast-paced repetitive walking caused a blister as a result of the rapid motion of the ill-fitting boots rubbing against his toe. Pearson v. Worksource, 2011 Ark. App. 751, 387 S.W.3d 274 (2011), rehearing denied, Pearson v. Worksource & Wausau Ins. Co., — Ark. App. —, — S.W.3d —, 2012 Ark. App. LEXIS 32 (Ark. Ct. App. Jan. 11, 2012), vacated, 2012 Ark. 406, 424 S.W.3d 311 (2012).

Employee whose feet became infected, allegedly due to water run-off on his apron and shoes during his employment at a poultry plant, failed to carry his burden under § 11-9-704(c) of proving that the infection and hospitalization was caused by exposure to water at work, as opposed to a continuation of a preexisting diabetic infection for which the employee had been hospitalized a month earlier. Serrano v. George's and Corckett Adjustment, 2011 Ark. App. 784 (2011).

Denial of workers' compensation benefits to the employee was inappropriate because substantial evidence did not support the finding that there was not enough evidence of record to rebut the presumption that the injury was occasioned by the presence of illegal drugs in the employee's system under subdivision (4)(B)(iv)( a ) of this section. Gentry v. Ark. Oil Field Servs., 2011 Ark. App. 786 (2011).

Arkansas Workers' Compensation Commission did not err in finding that an employee had not proved that a back injury occurred in the course of the employee's employment as a truck driver because the employee's testimony regarding the nature of the employee's complaints conflicted with the employee's statements to medical providers. Flynn v. J. B. Hunt Transp., 2012 Ark. App. 111, 389 S.W.3d 67 (2012).

There was substantial evidence to support the decision that appellee employee suffered a compensable aggravation of her preexisting cervical problems, because the employee complained of pain in her neck when she first sought medical treatment the day after her accident and her doctor's opinion that the pain in her neck and shoulder was work-related was stated with a reasonable degree of medical certainty under subdivision (16)(B) of this section. Ozark Natural Food v. Pierson, 2012 Ark. App. 133, 389 S.W.3d 105 (2012).

Doctor's opinion that claimant's carpal-tunnel injuries were directly related to her job as an ultrasound technician stated a causal link between the condition and claimant's employment duties for purposes of this section, and provided substantial evidence in support of the decision to award her for medical treatment and disability benefits. Ouachita County Med. Ctr. v. Murphy, 2012 Ark. App. 135 (2012).

Denial of permanent-disability benefits for the employee's compensable back injury was inappropriate pursuant to subdivision (4)(F)(ii)( a ) of this section because unrefuted testimony established that prior to the accident, he never had serious back pain and he was physically able to perform many activities and all of his work duties. Wright v. St. Vincent Doctors Hosp. Indem. Ins. Co. of N. Am., 2012 Ark. App. 153, 390 S.W.3d 779 (2012).

Denial of workers' compensation benefits related to the employee's back injury was proper because the objective medical evidence indicated a three-month gap between the date of the accident and the report of the injury, calling into question whether his injury was a result of the work-related accident. Because the medical records made no mention of the ladder incident until the back injury was discovered in June 2010, his testimony was the only evidence linking the injury to the fall and given the three-month span, reasonable persons might disagree as to the actual cause of the injury; thus, he failed to meet his burden under subdivision (4)(E) of this section to prove compensability under subdivision (4)(A)(i). Luster v. Ben E. Keith Co., 2012 Ark. App. 197 (2012).

Denial of workers' compensation benefits related to the employee's back injury was proper because the objective medical evidence indicated a three-month gap between the date of the accident and the report of the injury, calling into question whether his injury was a result of the work-related accident. Because the medical records made no mention of the ladder incident until the back injury was discovered in June 2010, his testimony was the only evidence linking the injury to the fall and given the three-month span, reasonable persons might disagree as to the actual cause of the injury; thus, he failed to meet his burden under subdivision (4)(E) of this section to prove compensability under subdivision (4)(A)(i). Luster v. Ben E. Keith Co., 2012 Ark. App. 197 (2012).

Finding that the claimant in a workers' compensation action suffered a compensable injury to his spine and was entitled to medical services and temporary total disability benefits was appropriate because a 2007 MRI showed that he sustained a herniated cervical disc, which constituted an objective finding under subdivision (4)(D) of this section. The claimant presented several physician opinions that linked his cervical problems and his need for treatment to the 2004 incident and established that he was temporarily totally disabled. Ga. Pac. Corp. v. Lawhon, 2012 Ark. App. 206 (2012).

Finding that the claimant failed to prove by a preponderance of the evidence that he suffered a compensable injury to his left shoulder was appropriate pursuant to subdivisions (4)(A)(i) and (4)(E) of this section because the medical records showed instances where the claimant did not attribute his injury to a specific incident identifiable by the time and place of occurrence, which must be proved in order to establish a compensable injury. Jones v. Rheem Mfg. Co., 2012 Ark. App. 260 (2012).

Music teacher failed to show that minor cervical abnormalities were caused by a fourth-grader running into her because the bulging at C5-6 was in existence dating back to 2007, and her treating physician could point to no new objective medical findings establishing a compensable injury as required by subdivision (4) of this section. Vaughn v. Midland Sch. Dist., 2012 Ark. App. 344 (2012).

Workers' Compensation Commission found that the worker's symptoms could not be causally related to his injury, for purposes of subdivision (4) of this section, but nothing negated the possibility of any causal relationship, and therefore the record did not support this medical conclusion; the court reversed and remanded. Vijil v. Schlumberger Tech. Corp., 2012 Ark. App. 361 (2012).

As there was an obvious, direct correlation between the injury appellant claimed he suffered at work (a blister) and the specific incident he alleged caused that injury (repeatedly walking wearing ill-fitting work-supplied boots), it was not an “unexplained injury”; therefore, he was entitled to benefits under subdivision (4)(A)(i) of this section. Pearson v. Worksource, 2012 Ark. 406, 424 S.W.3d 311 (2012).

Claimant had the burden, under subdivision (4)(E) of this section, to prove a compensable injury by a preponderance of the evidence. Swink v. Rest. Mgmt., 2012 Ark. App. 490 (2012).

There was evidence supporting appellant's claim that she suffered a compensable injury to her knee, but this did not warrant reversal, as the question was whether substantial evidence supported the Workers' Compensation Commission's decision, not whether the evidence supported contrary findings. Swink v. Rest. Mgmt., 2012 Ark. App. 490 (2012).

Workers' Compensation Commission found from the evidence that appellant had been seen by a doctor previously for her knee issues, which supported the conclusion that if she did fall at work, this did not play a causal role in her knee issues; there was a substantial basis for denying the claim. Swink v. Rest. Mgmt., 2012 Ark. App. 490 (2012).

Pursuant to subdivision (4)(F)(ii) of this section, an appellate court declined to reverse an award of disability benefits to an employee for a spine injury because there was ample evidence that the employee was not capable of performing the work duties that the employee had previously been able to perform before a work-related fall. Efird v. Whelan Sec., Inc., 2012 Ark. App. 548, 423 S.W.3d 643 (2012).

Workers' compensation benefits were not awarded to a claimant for gradual-onset injuries to the neck and back under subdivisions (4)(A) and (E) of this section because the injuries were not reported between 2009 and 2011, and no medical treatment was sought between 2003 and 2011. It was the role of the Workers' Compensation Commission to judge the credibility of the witnesses. King v. Superior Wheels, 2013 Ark. App. 95 (2013).

Workers' Compensation Commission found the claimant was not credible and assigned minimal weight to one doctor's report, but found another doctor's statement that the claimant did not have an injury to his head, spine, or neck belied the claimant's assertion in that regard; because the claimant did not establish a causal relationship between his injury and his employment, the conclusion that he did not prove he sustained a compensable injury was supported by substantial evidence. Vijil v. Schlumberger Tech., Corp., 2013 Ark. App. 346, 427 S.W.3d 796 (2013).

Worker was on his lunch break when the injury occurred, he was not required to stay on premises during his break or perform job-related duties, and the injury occurred when the break was only half over and he did not intend to immediately return to work, such that the employer did not benefit from the worker's actions, which were for his own convenience; substantial evidence supported the finding that the injury did not occur within the time and space boundaries of employment and was therefore not compensable. Shelton v. Qualserv Am. Cas. Co., 2013 Ark. App. 469 (2013).

Workers' compensation claimant was unable to show a gradual injury to his neck since he did not establish that the injury arose out of and in the course of his employment; the only evidence was speculation offered by the claimant. Test results showed disc abnormalities and multilevel degenerative disc disease, and the Workers' Compensation Commission afforded more weight to the degenerative condition, stating it could have been a factor in the injury and need for treatment. Kimble v. Labor Force, Inc., 2013 Ark. App. 601, 430 S.W.3d 156 (2013).

Workers' compensation claimant was unable to show a neck injury that was caused by a specific incident and was identifiable by time and place of occurrence because he failed to identify a work event that caused his injury; he did not remember an acute trauma or report any incident or injury, he did not stop working, he was able to complete his shift, and he did not report any injury or incident to co-workers or supervisors. Kimble v. Labor Force, Inc., 2013 Ark. App. 601, 430 S.W.3d 156 (2013).

In a dueling-doctors case, a court was bound by the findings of the Workers' Compensation Commission under subdivisions (4)(A)(ii) (b) and (E)(ii) of this section that the employee failed to prove that he sustained compensable carpal-tunnel injuries as a result of his employment. Thrapp v. Smith Blair, Inc., 2013 Ark. App. 683, 430 S.W.3d 810 (2013).

Workers' Compensation Commission properly affirmed and adopted an administrative law judge's (ALJ) denial of benefits for a right-shoulder injury because the employee failed to prove a causal connection between objective findings of an injury and a work-related incident where the only evidence in the record supporting the employee's claim that he suffered a work-related shoulder injury was his own testimony, which the ALJ found not credible. Williams v. Baldor Elec. Co., 2014 Ark. App. 62 (2014).

Triggering of the statutory presumption shifted the burden of proof to the employee to prove by a preponderance of the evidence that the injury or accident was not substantially occasioned by his use of illegal drugs. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25 (2014).

Workers' Compensation Commission arbitrarily disregarded testimony submitted in support of the employee's claim, and the decision that he failed to rebut the presumption that his accident was not substantially occasioned by the use of illegal drugs was not supported by substantial evidence; the employee testified that he was not intoxicated on the day of the accident, and he presented evidence that no one saw him impaired as the result of drug intoxication on the day of the accident. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25 (2014).

Medical testing of the employee established the presence of marijuana metabolites, which triggered the statutory presumption that the injury or accident was substantially occasioned by the use of illegal drugs. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25 (2014).

Workers' Compensation Commission erred in finding that the employee failed to rebut the statutory presumption that his accident was substantially occasioned by his use of marijuana, because the Commission arbitrarily disregarded any testimony supporting the employee's claim, which included testimony by coworkers and a supervisor that the employee was not impaired at the time of the accident, and merely speculated that the employee was high. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858 (2014).

It was the worker's burden to prove a compensable injury, not the employer's burden to disprove one. Dismute v. Potlatch Corp., 2014 Ark. App. 176 (2014).

Substantial evidence supported the determination by the Workers' Compensation Commission that the worker failed to meet his burden of establishing a compensable injury, given in part the testimony that the worker was not lifting any lumber when he allegedly hurt his back, and a doctor stated that the worker did not sustain any objective change in his physical findings as a result of the alleged accident. Dismute v. Potlatch Corp., 2014 Ark. App. 176 (2014).

Workers' Compensation Commission found a compensable injury, as the worker was directly advancing the company's interests at the time of the incident and the company benefitted from the work the worker performed, and it was clear that the Commission's decision to reverse was based on issues of credibility alone; because questions of credibility were the exclusive province of the Commission, the court was foreclosed from determining the weight and credibility to be accorded to the testimony, and the court affirmed. Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285 (2014).

—In General.

Evidence sufficient to find job-related injury. Harding Glass Co. v. Moore, 230 Ark. 796, 327 S.W.2d 8 (1959); Bradham Drilling Co. v. Powell, 231 Ark. 555, 331 S.W.2d 35 (1960); Tri State Ins. Co. v. Employers Mut. Liab. Ins. Co., 254 Ark. 944, 497 S.W.2d 39 (1973); Emerson Elec. Co. v. Williams, 270 Ark. 65, 603 S.W.2d 443 (1980).

Evidence insufficient to find job-related injury. John Bishop Constr. Co. v. Orlicek, 224 Ark. 182, 272 S.W.2d 820 (1954); Ocoma Foods v. Grogan, 253 Ark. 1111, 491 S.W.2d 65 (1973); Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ct. App. 1979).

Separate injuries or conditions that occur simultaneously or near in time to each other can be compensable, even where the injuries are located in the same body member. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998).

Order awarding temporary total disability benefits to an employee was upheld because it was undisputed that the employee sustained an accidental injury, as defined by subdivision (4)(A)(i) of this section, when she fell off a ladder and landed on her back on a concrete floor as treatment, medication and physical therapy were prescribed. Fred's, Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005).

—Accident.

The words accidental injury mean something happening without the design of, and being unforeseen and unexpected by, the person to whom the injury happens. Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1 (1946) (decision under prior law).

Injury to heart by breathing excessive amounts of dust was not one which appellee might have reasonably expected or anticipated and was therefore accidental within the meaning of former Workers' Compensation Law although it continued over a period of years. Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S.W.2d 31 (1947) (decision under prior law).

Injury was not due to accident where evidence showed that injury was not due to any specific incident but was the result of heavy lifting over a period of time in the normal course of employment. Stallings Bros. Feed Mill v. Stovall, 221 Ark. 541, 254 S.W.2d 460 (1953).

An injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956); Spencer v. Plainview Lumber Co., 239 Ark. 1039, 396 S.W.2d 943 (1965); Young v. Heekin Canning Co., 13 Ark. App. 199, 681 S.W.2d 419 (1985).

Accidental injury means every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another. Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956).

The adjective accidental refers to and modifies the noun injury, and does not refer to the cause of the injury. There is no statutory requirement that the cause of injury itself must have also been accidental. Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956).

Claimant did not prove by a preponderance of evidence that she experienced a compensable injury under subdivision (5)(A)(i), caused by a specific incident and identifiable by time and place of occurrence, as opposed to experiencing a gradual injury. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).

Substantial evidence supported Arkansas Workers' Compensation Commission's decision finding that employee was entitled to benefits as the Commission found the brother's testimony that the accident was unavoidable to be credible and the presence of drugs did not controvert the claim for benefits. Apple Tree Serv. v. Grimes, 94 Ark. App. 190, 228 S.W.3d 515 (2006).

—Aggravation.

An aggravation is a new injury resulting from an independent incident; the independent incident must be shown to be work-related, and, under subdivision (5)(A)(i), it must be shown that the accidental injury was caused by a specific incident identifiable by time and place of occurrence. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).

Award of benefits to the employee in a workers' compensation action was proper where substantial evidence supported the determination that the employee sustained an aggravation of her pre-existing condition; the positive bone scan was an objective medical finding of injury that was out of the employee's control and it formed the basis for the recommendation of surgery. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003).

Workers' Compensation Commission erred in finding that the employee had failed to prove a casual connection between her compensable injury and her need for total-knee-replacement surgery; the employer and insurer had to take the employee as they found her, and the compensable injury that she suffered was a factor in her need for the additional surgery. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004).

Denial of the employee's permanent benefits was error where the employee's back disease did not require surgery or any other medical treatment prior to the compensable aggravation; there was no evidence that the employee was assigned any rating for his pre-existing stenosis, and there was evidence that his impairment resulted from the aggravation that caused the need for surgery. Pollard v. Meridian Aggregates, 88 Ark. App. 1, 193 S.W.3d 738 (2004).

There was substantial evidence that claimant suffered a new injury and a compensable aggravation resulting from the independent incident where claimant testified that, after squatting down and opening his laptop on February 7, 2001, he started to get up and was knocked to the ground by severe pain in his back and right side; his testimony that his back was “crooked” following the severe pain experienced in the incident was credible and his physical therapist stated that he observed a decreased lumbar lordosis on March 5, 2001. King v. Peopleworks, 97 Ark. App. 105, 244 S.W.3d 729 (2006).

Workers' Compensation Commission properly found that an employee sustained a new compensable injury and was entitled to temporary total disability benefits and attorney's fees after he felt abrupt, excruciating pain as he stepped down from an excavator and required help to take him to a hospital; while the employee had preexisting chronic back pain, a new MRI showed, and two doctors stated, that the employee's spine had new and/or different injuries. Greene Cty. Judge v. Penny, 2019 Ark. App. 552, 589 S.W.3d 478 (2019).

Employment circumstances that aggravate preexisting conditions are compensable; an aggravation is a new injury resulting from an independent incident and must be evidenced by objective medical findings of a new injury to the preexisting condition. Greene Cty. Judge v. Penny, 2019 Ark. App. 552, 589 S.W.3d 478 (2019).

—Arising Out of and in the Course of Employment.

When the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of his own, but merely for the benefit of his master, acts done in such circumstances are within the scope of the servant's employment, but the master is not responsible where a servant acts without reference to the service for which he is employed, but to effect some independent purpose of his own. Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600 (1942).

Injury held not to be within scope. Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S.W.2d 574 (1943), overruled in part, Southern Cotton Oil Div. v. Childress, 237 Ark. 909, 377 S.W.2d 167 (Ark. 1964) (cases decided under prior law); Duke v. Pekin Wood Prods. Co., 223 Ark. 182, 264 S.W.2d 834 (1954); Grace v. Mt. Holly Lumber Co., 239 Ark. 519, 390 S.W.2d 105 (1965); West Tree Serv., Inc. v. Hopper, 244 Ark. 348, 425 S.W.2d 300 (1968); Bentley v. Henderson, 251 Ark. 203, 471 S.W.2d 548 (1971); Owosso Furn. Co. v. Townsend, 251 Ark. 265, 471 S.W.2d 752 (1971); Moseley Auto Sales & Serv. v. Vines, 254 Ark. 885, 497 S.W.2d 19 (1973); Queen v. Royal Serv. Co., 13 Ark. App. 274, 682 S.W.2d 779 (1985); Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987); Lytle v. Arkansas Trucking Servs., 54 Ark. App. 73, 923 S.W.2d 292 (1996).

To be compensable the alleged injury must not only arise in the course of the employment, but also out of the employment. Barrentine v. Dierks Lumber & Coal Co., 207 Ark. 527, 181 S.W.2d 485 (1944), overruled in part, Southern Cotton Oil Div. v. Childress, 237 Ark. 909, 377 S.W.2d 167 (Ark. 1964) (decision under prior law).

The burden of proof is on a claimant to show that injury or death of an employee was the result of an accidental injury that not only arose in the course of the employment, but in addition, that it grew out of, or resulted from, the employment. Duke v. Pekin Wood Prods. Co., 223 Ark. 182, 264 S.W.2d 834 (1954); Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987).

Burden was on claimant to show accident occurred in the course of employment. American Cas. Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41 (1955).

An accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956); Young v. Heekin Canning Co., 13 Ark. App. 199, 681 S.W.2d 419 (1985).

Injury held to be within scope of employment. Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W.2d 323 (1957); United Steelworkers v. Walden, 228 Ark. 1024, 311 S.W.2d 787 (1958); Malvern Brick & Tile Co. v. Lowery, 230 Ark. 857, 327 S.W.2d 86 (1959); Alma Canning Co. v. Hanna, 233 Ark. 996, 350 S.W.2d 166 (1961); Southern Cotton Oil Div. v. Childress, 237 Ark. 909, 377 S.W.2d 167 (Ark. 1964); Georgia-Pacific Corp. v. Craig, 243 Ark. 538, 420 S.W.2d 854 (1967); Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W.2d 812 (1971); American Red Cross v. Wilson, 257 Ark. 647, 519 S.W.2d 60 (1975); Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976); Purdy v. Livingston, 262 Ark. 575, 559 S.W.2d 24 (1977); Saint Vincent Infirmary v. Carpenter, 268 Ark. 951, 597 S.W.2d 126 (Ct. App. 1980); J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ct. App. 1980); Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (1980); Marshall v. Ouachita Hosp., 269 Ark. 958, 601 S.W.2d 901 (Ct. App. 1980), overruled in part, Harrison Furn. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981); Meyer's Bakery, Inc. v. Pratt, 6 Ark. App. 421, 644 S.W.2d 299 (1982); P.A.M. Transp. v. Miller, 24 Ark. App. 163, 750 S.W.2d 417 (1988).

When an injury or disability is caused by exertion arising from the employment, whether the exercise is normal or extraordinary, the injury is compensable. Arkansas-Best Freight System v. Shinn, 235 Ark. 314, 357 S.W.2d 661 (1962).

There is no presumption that a claim for workers' compensation comes within the purview of the law, i.e., that it arose out of and in the course of the claimant's employment. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979).

The phrase arising out of the employment refers to the origin or cause of the accident and the phrase in the course of the employment refers to the time, place and circumstances under which the injury occurred; in order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ct. App. 1980).

Activities of a personal nature, not forbidden but reasonably to be expected, may be a material incident of the employment and injuries suffered in the course of the activities are compensable, the fact that the injury is suffered during a lunch break, when the employee is not required to be on the premises, does not alter this principle since the controlling issue is whether the activity is reasonably expectable so as to be an incident of the employment, and thus in essence a part of it. J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ct. App. 1980).

The workers' compensation commission should follow a liberal approach in determining whether the accident in fact grew out of and occurred in the course of the employment and it is the duty of the commission to draw all legitimate inferences possible in favor of the claimant and to give the claimant the benefit of doubt. Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

Minor acts of horseplay do not automatically constitute departures from employment but may be found to be insubstantial. Whether initiation of horseplay is a deviation from one's course of employment depends on (1) the extent and seriousness of the deviation; (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty); (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some such horseplay. Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).

The fact that an injured employee may have been the instigator of, rather than a mere participant in horseplay, will not necessarily render the injury noncompensable. Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).

Claimant's injuries, sustained when a tornado destroyed a mobile home where he resided on the premises of his employer, arose out of and in the course of his employment. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).

A teacher was performing employment services when she fell in the school parking lot while retrieving her glasses where she had reported to work, had supervised children before the bell rang beginning school, was given an assignment after reporting to the librarian, and had injured herself in efforts taken to complete the assignment. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999).

Substantial evidence supported the determination that the claimant was not engaged in employment services at the time of her injury where she was injured when she slipped on a wet floor during her lunch break while attending a two week instructional seminar. Beaver v. Benton County Child Support Unit, 66 Ark. App. 153, 991 S.W.2d 618 (1999).

A food service worker at a university was performing employment services at the time that she slipped in a puddle of salad dressing; she was getting a snack from the cafeteria to eat during her 15 minute break because she was paid for her breaks and was required to assist students on her break if the need arose. Ray v. University of Ark., 66 Ark. App. 177, 990 S.W.2d 558 (1999).

The Commission erred in finding that claimant failed to prove that her condition arose out of and in the course of her employment as required by (5)(A)(ii) of this section where there was little, if any, evidence to suggest that her carpal tunnel syndrome was caused by anything other than work at UPS. Lloyd v. UPS, 69 Ark. App. 92, 9 S.W.3d 564 (2000).

The gradual onset for back injuries specified in subdivision (4)(A)(ii) (b) does not apply to injuries to the neck or cervical spine; recognized medical definitions have very clearly defined the term “back” as being below the neck or from the neck to the pelvis. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

Pursuant to subdivision (4)(A)(i), there was substantial evidence to support the Workers' Compensation Commission's finding that the claimant's need for medical treatment was directly and causally related to an incident that occurred at work. Wal-Mart Stores, Inc. v. Stotts, 49 S.W.3d 667 (2001), substituted opinion, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Under subdivision (4)(B)(iii), an employee's injury that occurred while he was on a restroom break was not excluded from the definition of “compensable injury” because the injury did not occur at a time when he was not performing employment services; the restroom break was a necessary function and directly or indirectly advanced the interests of his employer. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).

Employee did not suffer an injury arising out of or in the course of his employment, as defined by subdivision (4)(A)(i) where he was not performing employment services at the time of the injury but rather he chose to jump over tube sheeting to retrieve his soda so that he could go on his smoke break; therefore, he was properly denied workers' compensation benefits. McKinney v. Trane Co., 84 Ark. App. 424, 143 S.W.3d 581 (2004).

Where Department of Correction employee was injured while travelling to a required staff meeting at his normal place of work on his day off, he was properly denied workers' compensation benefits; merely traveling to and from the workplace was not a covered activity under the workers' compensation statutes and it was not clear that the “special errand” exception was still valid after the passage of Acts 1993, No. 796, which revised the definition of a “compensable injury.” Linton v. Ark. Dep't of Corr., 87 Ark. App. 263, 190 S.W.3d 275 (2004).

Where employee who was employed as a freight hauler was “off the clock” and taking a mandated eight-hour overnight rest break when the accident occurred in a motel bathroom, his injury was not compensable; the appellate court noted that the accident was no different from one which could have occurred at the employee's home during his off hours. Cook v. ABF Freight Sys. Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004).

Given the evidence that the injury occurred before the claimant's work shift had started, and while claimant was outside the territorial jurisdiction of the sheriff's department by which he was employed, the Workers' Compensation Commission could reasonably have concluded that his injury was sustained at a time when employment services were not being performed. Maupin v. Pulaski County Sheriff's Office, 90 Ark. App. 1, 203 S.W.3d 668 (2005).

Workers Compensation Commission erred in denying employee's claim for benefits as employee was injured in an area in which employment services were expected of her and she was furthering her employer's interests when she was injured; an employee may be compensated for an injury that occurs even before she reaches her work station or before she is “on the clock” if she is performing a service that is required by her employer and is directly or indirectly advancing her employer's interests. Foster v. Express Pers. Servs., 93 Ark. App. 496, 222 S.W.3d 218 (2006).

Where benefits claimant had been required to attend a corporate meeting and demonstration prior to his scheduled shift, injuries he suffered in a car accident on the way to work from the demonstration were compensable because he was on a special errand and traveling from one job site to another; thus, the going-and-coming rule did not preclude the award of benefits. Jones v. Xtreme Pizza, 97 Ark. App. 206, 245 S.W.3d 670 (2006).

Slip and fall injury did not arise out of and in the course of employment, as required by subdivision (4)(A)(i) of this section, because appellant truck driver was not advancing his employer's interests in any way while he was operating a vending machine away from the area in which his truck was being unloaded. While in the break room, he could not have seen his truck had someone hit it, he could not have seen any damage inflicted upon the products being unloaded, and he was not in an area where he could have determined whether someone needed him to move the truck for any reason. Hill v. LDA Leasing, Inc., 2010 Ark. App. 271, 374 S.W.3d 268 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 443 (May 12, 2010).

Pursuant to subdivision (4)(B)(iii) of this section, a truck driver's injury—caused when he fell while buying snack crackers at a vending machine— was not compensable because it was inflicted upon him at a time when employment services were not being performed. The act of pushing the vending machine buttons could not be said to directly or indirectly advance the interests of his employer. Hill v. LDA Leasing, Inc., 2010 Ark. App. 271, 374 S.W.3d 268 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 443 (May 12, 2010).

Whatever an employee's deviation from his driving route might have been when he stopped his truck to visit his sick grandmother, the employee's act of attempting to put out a fire on the employer's truck was the performance of employment services, for which he was entitled to compensation under subdivision (4)(A)(i) of this section. Gaskins v. Jeff Minner Trucking, 2010 Ark. App. 471 (2010).

Workers' Compensation Commission did not err in reversing an administrative law judge and in dismissing an employee's claim, because the only issue in the case was whether there was substantial evidence to support the Commission's decision, and the Full Commission's opinion adequately explained why it found that the employee failed to prove she was providing employment services at the time of her accidental injuries. Ness v. Fort Smith Pub. Sch. Dist., 2014 Ark. App. 118 (2014).

Workers' Compensation Commission's finding that a housekeeper was acting within the course and scope of her employment was supported by substantial evidence where she testified that her primary purpose in going to the laundry room was to get clean towels. Best Western Inn v. Paul, 2014 Ark. App. 520, 443 S.W.3d 551 (2014).

Claimant for workers' compensation benefits failed to prove that the claimant's injury arose out of and in the course of the claimant's employment because the claimant was on a personal errand to retrieve food for the claimant's own benefit when the claimant injured the claimant's knee in a slip and fall accident while stepping into an elevator at the hospital where the claimant worked. Ganus v. St. Bernard's Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683 (2015).

Workers' Compensation Commission, which determined that a claimant sustained a compensable injury arising out of and in the course of her employment, could reasonably conclude that the claimant's briefly leaving her workstation to get a snack did not detract from her job duties, which benefited her employer, directly or indirectly. There was nothing in the record to suggest that the claimant's actions were inconsistent with her employer's interest in advancing the work. Centers for Youth & Families v. Wood, 2015 Ark. App. 380, 466 S.W.3d 422 (2015).

Workers' Compensation Commission's decision that a truck driver in training sustained a compensable injury was supported by substantial evidence where, as a trainee, the driver was expected to study or practice backing up the truck, the injury occurred within the truck during a period when the driver was not enjoying a leisure time off or free to do as he pleased, and reasonable minds could have concluded that a discussion of the testimony concerning the timing of a Facebook post was unnecessary in reconciling conflicting evidence. P.A.M. Transp., Inc. v. Eason, 2018 Ark. App. 77, 540 S.W.3d 308 (2018).

Workers' Compensation Commission did not err in awarding benefits to the claimant, an administrative assistant, because reasonable minds could conclude that the claimant was acting within the scope and course of her employment and directly or indirectly advancing her employer's interests when she slipped and fell, and, whether she was technically “on” or “off” the clock was not dispositive, as the claimant was expected to respond to work queries if she was approached away from her desk or before her regular work hours began; and the claimant was inside the building, and was on her way to her office when she was injured. Ark. Sec'y of State v. Young, 2018 Ark. App. 508, 559 S.W.3d 331 (2018).

Substantial evidence supported the Workers' Compensation Commission's decision that a housekeeper failed to establish a compensable injury because she was not performing employment services at the time of the accident; substantial evidence supported the Commission's finding that the housekeeper was on her way to lunch when she fell in the lobby because she told the human resources office immediately following the incident that she fell when she was going to lunch and both the human resources officer and the housekeeping supervisor testified that the housekeeper was walking toward the front door when she fell. Rodriguez-Gonzalez v. Jamestown Health & Rehab, LLC, 2019 Ark. App. 530, 589 S.W.3d 408 (2019).

Workers' Compensation Commission did not err in finding that the claimant was performing employment services at the time she was injured because she testified that during her break she remained on duty and in the building, she was clocked in, and she remained on call and available to work; she testified that she was the only unit coordinator on her shift and that if she had been called to return to her desk based on an emergency or a trauma, she would have been required to do so; she stated that she had been called back three or four times in the past; and the employer derived a benefit from the claimant's remaining in the building, immediately available to resume her duties. Univ. of Ark. for Med. Scis. v. Hines, 2019 Ark. App. 557, 590 S.W.3d 183 (2019).

— —Assaults.

In the cases of assaults, the positional risk doctrine applies only when the risk is neutral; neutral means that the risk which caused the injury was neither personal to the claimant nor distinctly associated with the employment. In other words, before the doctrine will be applied there must be no evidence that the assault was personal and no evidence that the assault was work related. Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989).

Claimant, a maintenance worker and security guard, was injured in the course of his employment when he was assaulted by a trespasser who refused to leave the property; because the risk of assault was increased by the nature of the claimant's work, the injury arose out of his employment. Bryan v. Best Western/Coachman's Inn, 47 Ark. App. 75, 885 S.W.2d 28 (1994).

An assault arises out of the employment either if the risk of assault is increased by the nature or setting of the work (regardless of the reason for the assault), or if the reason for the assault was a quarrel having its origin in the work; the test is an alternative one and the satisfaction of either condition will render injuries received as the result of an assault compensable. Bryan v. Best Western/Coachman's Inn, 47 Ark. App. 75, 885 S.W.2d 28 (1994).

Actions of employee who was injured while attempting to break up a fight between her son and another worker, both of whom were also employees, were held to be in the best interests of the employer and thus the injury arose out of and in the course of employment. Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996).

An employee was entitled to benefits for injuries sustained in an incident in which another employee pulled a chair out from under her while she was changing from work clothes into street clothes as the injured employee was not an “active participant” in the assault that caused her injury. Flowers v. Arkansas Hwy. & Transp. Dep't, 62 Ark. App. 108, 968 S.W.2d 660 (1998).

In a workers compensation action, a bank teller failed to establish that she suffered a compensable injury under subdivision (4)(A)(i) of this section when a gunman attacked her in her home and she injured her wrist as she fled. She was not within the scope of her employment as there was no evidence that he was after her bank key or vault codes. Gingras v. Liberty Bank, 2011 Ark. App. 65, 381 S.W.3d 112 (2011).

Award of workers' compensation benefits to the employee for compensable injuries was appropriate because he did not fall within the exclusion under subdivision (4)(B)(i) of this section since he was not an active participant in the assault against him. Additionally, the risk of assault was increased by the employee's work setting. Odd Jobs & More v. Reid, 2011 Ark. App. 450, 384 S.W.3d 630 (2011), rehearing denied, — Ark. App. —, — S.W.3d —, 2011 Ark. App. LEXIS 521 (Ark. Ct. App. July 27, 2011).

Claimant was entitled to workers' compensation benefits when a co-worker repeatedly hit the claimant with a baseball bat during an altercation that occurred in their employer's parking lot on the morning of a supervisor-called meeting between the parties regarding an incident between them the previous day; the claimant was not an active participant in the assault and the claimant was performing employment services at the time of the assault as he was well within the time and space boundaries of his employment. Dorn v. Hous. Auth. Pine Bluff, 2017 Ark. App. 309, 522 S.W.3d 167 (2017).

Substantial evidence supported the Workers' Compensation Commission's finding that decedent restaurant employee was killed during and in the course and scope of his employment because all of the evidence demonstrated that the decedent was carrying out his employer's purpose and advancing its interests at the time of his death during the armed robbery; accordingly, the Commission properly found that the employer was protected by the exclusive-remedy provision. Herrera-Larios v. El Chico 71, 2017 Ark. App. 650, 535 S.W.3d 305 (2017).

— —Gradual Development.

Arkansas law has long upheld the compensability of gradual injuries which arise out of and in the course of employment. Marcoe v. Bell Int'l, 48 Ark. App. 33, 888 S.W.2d 663 (1994).

The gradual-onset exception for back injuries does encompass injuries to the cervical spine. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000).

Employee's compensable gradual-onset injury was established by her testimony regarding the physical requirements of her job and an MRI showing a disc herniation not previously present. Wal-Mart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001).

Substantial evidence supported the finding that the employee sustained a compensable gradual-onset injury to her lower back; there was no evidence that the employee experienced any back problems prior to her employment, there was documentation that her pain was exacerbated by working, and her pain persisted and ultimately required her to quit work. Lowe's Home Ctrs. v. Pope, 2016 Ark. App. 93, 482 S.W.3d 723 (2016).

— —Positional Risk Doctrine.

The positional risk doctrine does not provide a new ground for recovery, but allows a presumption to arise in favor of compensation where the accident causing the injury was unexplainable. Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989).

The positional risk doctrine provides a method of satisfying the “in the course of” requirement where the source of the injury is unexplained. An injury “arises out of” the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989).

An employee was entitled to benefits for injuries sustained in an incident in which another employee pulled a chair out from under her while she was changing from work clothes into street clothes as the injured employee was not an “active participant” in the assault that caused her injury. Flowers v. Arkansas Hwy. & Transp. Dep't, 62 Ark. App. 108, 968 S.W.2d 660 (1998).

—Burden of Proof.

Under subdivision (5)(E)(ii), only when the injury was not occasioned by a specific incident does it need to be shown that the compensable injury was the major cause of employee's disability. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).

Only when a claimant who has sustained a compensable injury is seeking permanent disability benefits is there a requirement to prove that the compensable injury is the major cause of the permanent disability. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).

The Workers' Compensation Commission erred as a matter of law when it required a finding that the claimant's work, rather than her injury, was the major cause of her disability or need for treatment. Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998).

Based on the Workers' Compensation Commission's credibility determination concerning the employee's testimony, the letter indicating that the employee had previously made complaints regarding neck pain, and the MRI proving that the employee had in fact sustained an injury to her cervical spine, the Commission had correctly found that the employee had met her burden of proving by a preponderance of the evidence that she sustained a compensable neck injury in addition to her low-back injury. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).

Where a hospital drug test was ruled invalid, employee was not required to show by a preponderance of the evidence that the cannabinoids and metabolites found in the test did not substantially occasion a burn suffered in a work-related accident. Epoxyn Prods. v. Padgett, 84 Ark. App. 147, 138 S.W.3d 118 (2003).

Where there was evidence that employee drove a forklift without permission very fast in tight circles like a game, and that employee was “wasting time and playing” while doing so, the Workers' Compensation Commission did not err in finding that the employee's injury was the result of horseplay under subdivision (4)(B)(i). Morales v. Martinez, 88 Ark. App. 274, 198 S.W.3d 134 (2004).

—Carpal Tunnel Syndrome.

Claimant was not required to prove that his carpal tunnel syndrome was the result of the same movement again and again; this interpretation of subdivision (5)(A)(ii) (a) is too restrictive and precludes multiple tasks, such as hammering or grinding, from being considered together to satisfy this section's requirements. Baysinger v. Air Sys., 55 Ark. App. 174, 934 S.W.2d 230 (1996).

Carpal tunnel syndrome claimants must prove rapid repetitive motion to sustain a claim for a compensable injury; carpal tunnel syndrome is not exempted from the proof requirement of other gradual-onset injuries, but is merely listed as an example of a type of gradual-onset injury that may be proven by evidence of rapid repetitive motion. Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997), rev'd, 333 Ark. 335, 969 S.W.2d 190 (1998).

Employee's carpal tunnel syndrome was compensable where a physician diagnosed carpal tunnel syndrome, a nerve conduction study confirmed the diagnosis, and medical records established the need for medical treatment. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998).

Carpal tunnel syndrome is both compensable and falls within the definition of rapid repetitive motion and, therefore, proof of rapid and repetitive motion by a claimant is not required. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

The claimant was entitled to benefits based on his carpal tunnel syndrome where it was undisputed that the claimant's employment required quick hand and wrist movements throughout the day, there was no doubt that his job was repetitive, and there was no other suggestion in the record as to what, other than his employment, could have caused his carpal tunnel syndrome. Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), rev'd, 341 Ark. 804, 20 S.W.3d 900 (2000).

Substantial evidence supported the Workers' Compensation Commission's finding of a compensable injury where objective medical findings showed that the worker developed bilateral carpal tunnel syndrome while employed solely by the employer for a period of six years, that his job with the employer was repetitive and hand-intensive, and that he received reasonably necessary treatment for the condition. W L Harper Co. Am. Zurich Ins. Co. v. Woods, 2016 Ark. App. 431 (2016).

—Causal Connection.

Liability under former Workers' Compensation Act was based, not upon any act or omission of the employer but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured; it is enough if there be a causal connection between the injury and the employment substantially contributory though not the sole or proximate cause. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943) (decision under prior law).

Causal connection established between injury and employment. Pekin Wood Prods. Co. v. Graham, 207 Ark. 564, 181 S.W.2d 811 (1944) (decision under prior law); Crossett Chem. Co. v. Sedberry, 232 Ark. 608, 339 S.W.2d 426 (1960); International Paper Co. v. Myers, 233 Ark. 378, 345 S.W.2d 1 (1961); McGeorge Constr. Co. v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961); Arkansas-Best Freight System v. Shinn, 235 Ark. 314, 357 S.W.2d 661 (1962); International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971); Bechtel Corp. v. Winther, 262 Ark. 361, 556 S.W.2d 882 (1977); Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (1980); Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

A period of minutes between the discharge and injury of an employee on the work premises by another employee in a work connected fight does not bar the employee from receiving workers' compensation. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545 (1954).

The rule of liberal construction does not relieve the claimant of the burden of showing a causal relation between the injury and the employment. McFall v. Farmers Tractor & Truck Co., 227 Ark. 985, 302 S.W.2d 801 (1957).

In order to show causal connection between deceased's work and his death it is not necessary that claimant show unusual physical exertion on the part of deceased prior to his death. Harper v. Henry J. Kaiser Constr. Co., 233 Ark. 398, 344 S.W.2d 856 (1961).

The burden is on the claimant to show a causal connection between the death of deceased and his work. Harper v. Henry J. Kaiser Constr. Co., 233 Ark. 398, 344 S.W.2d 856 (1961).

Causal connection not established between injury or death and employment. Lemmer v. Chicopee Mfg. Co., 233 Ark. 523, 345 S.W.2d 629 (1961); Latimer v. Sevier County Farmers' Coop., 233 Ark. 762, 346 S.W.2d 673 (1961); Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962); Farrelly Lake Co. v. Redden, 235 Ark. 404, 360 S.W.2d 187 (1962); Pace Corp. v. Burns, 251 Ark. 311, 472 S.W.2d 78 (1971); Southland Corp. v. Hester, 253 Ark. 959, 490 S.W.2d 132 (1973); McCarty v. Reid, 268 Ark. 756, 595 S.W.2d 702 (Ct. App. 1980); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).

In determining the allowability of employee's claim for compensation under this chapter it was error not to permit a doctor to answer a hypothetical question embracing all of the essential facts involving causal connection between the work and employee's injury. Johnson v. Bear Brand Roofing, Inc., 233 Ark. 639, 346 S.W.2d 472 (1961).

If the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the commission's conclusions are controlling. Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W.2d 263 (1962).

Liberality in the application of this chapter does not extend to allowance of claims absent proof of one of the essential elements; causation is one of the essential elements. Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ct. App. 1979).

It is not essential that the causal relationship between the accident and disability be established by medical evidence. Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

In order for a worker's disability to be compensable, there must be a causal connection between the accident and a risk which is reasonably incident to the employment. There must be affirmative proof of a distinctive employment risk as the cause of the injury; the connection with the employment cannot be supplied by speculation. Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

Where conversion disorder follows a physical, on-the-job injury, causal requirement is met if it is shown that symptoms of neurosis were triggered or precipitated by physical injury. Boyd v. General Indus., 22 Ark. App. 103, 733 S.W.2d 750 (1987).

Compensable injury did not aggravate claimant's preexisting left hip condition and was not the major cause of the resulting left hip condition of claimant. Langley v. Danco Constr. Co., 57 Ark. App. 295, 944 S.W.2d 142 (1997).

Compensable injury held not to be “major cause” of disability of claimant with cervical spondylosis. Sullivan v. Paris Retirement Inn, 60 Ark. App. 283, 961 S.W.2d 785 (1998).

A causal connection existed between the claimant's lifting at work and the findings at surgery where it was undisputed that the claimant had degenerative back disease, but his accidental injury at work either caused or precipitated the need for medication and surgery. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000).

In order to prove a compensable injury, an appellee had to prove, among other things, a casual relationship between the injury and the employment; it was not essential that the casual relationship between the accident and the disability be established by medical evidence. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Objective medical evidence was necessary to establish the existence and extent of an injury but not essential to establish the casual relationship between the injury and work-related accident. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Where an employee acquired a serious infection through scratches obtained during the course of employment, the Workers' Compensation Commission erred by requiring the employee to prove that the infection was an occupational disease; the employee was only required to establish a causal link between the scratches and the infection in order to show a compensable accident injury under subdivision (4)(a). Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003).

Workers' compensation commission did not err in finding that claimant failed to prove by a preponderance of the evidence that his cognitive dysfunction and psychological problems were causally related to his having being accidentally shocked with 440 volts of electricity. Arbaugh v. A.G. Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005).

Where employee returned to work after an accident and an MRI taken months later showed a broad posterior disc protrusion at C6-7, which the doctor stated was causally related to the accident, the Arkansas Workers' Compensation Commission erred by finding that the employee did not sustain a compensable injury. Wilson v. Cornerstone Masonry, 95 Ark. App. 1, 233 S.W.3d 161 (2006).

Workers' Compensation Commission properly denied the claimant's claim for permanent partial impairment because she failed to establish through her own testimony or other means that either the annular tear or muscle spasms supported the existence of a permanent impairment causally related to her 2009 injury. O'Guinn v. Little River Mem'l Hosp., 2013 Ark. App. 593, 430 S.W.3d 150 (2013).

Workers' Compensation Commission properly denied an employee's claim for benefits for a back injury allegedly incurred when she fell on a wet floor at work because the employee had a long history of degenerative joint disease that had progressively worsened and a statement in a doctor's notes allegedly providing the necessary causal connection between her fall at work and the back injury appeared to be a recitation of medical history given by the employee herself. Hymes v. Pinewood Health Rehab., 2014 Ark. App. 320 (2014).

An impairment rating could be based on annular tears only if the tear resulted from the compensable injury, and the causal connection was a fact question for the Workers' Compensation Commission to decide. Thompson v. Mt. Home Good Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d 873 (2014).

Substantial evidence supported the Workers' Compensation Commission's finding that a claimant failed to prove that the claimant sustained a compensable head injury in a motor vehicle accident because there were no complaints by the claimant regarding the claimant's head or brain having been injured in the accident until more than two years following the event. Furthermore, there was no evidence that an MRI finding of scarring was related to the accident. Myers v. City of Rockport, 2015 Ark. App. 710, 479 S.W.3d 33 (2015).

Because the Workers' Compensation Commission failed to make any causal-connection findings in connection with the claimant's July 2017 right-shoulder injury, reversal and remand for the Commission to do so was appropriate. Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d 424 (2019).

—Causal Connection Not Shown.

In a workers' compensation case, a claimant did not recover for neck and shoulder injuries because causation was not established; a doctor's report was not given weight where it was based on subjective information provided by the claimant; it was not credible that a minor incident described by the claimant caused all the fairly serious injuries as alleged; moreover, the claimant had reported problems with her neck, as well as numbness, pain, and tingling in her hands for years prior to the work-related incident. Hosey v. Wal-Mart Assocs., 2016 Ark. App. 189, 487 S.W.3d 837 (2016).

Workers' Compensation Commission properly found that claimant failed to prove that he sustained a compensable injury while acting in the course and scope of his employment where there was no evidence that he was working for the employer during a seizure that preceded the brain scan on which he relied, there was no evidence of a causal connection between a suggested laceration in the brain scan and the work accident, given that a brain scan on the date of the work accident revealed no abnormal findings, and claimant failed to argue against the possibility that the subsequent seizure may have been an intervening cause for the suggested laceration. Garcia v. Jensen Constr. Co., 2017 Ark. App. 450, 527 S.W.3d 749 (2017).

Workers' Compensation Commission properly denied a worker's claim that she suffered a compensable injury because there was no indication in her medical records of any injury to her left hand and wrist due to a work-related injury where her medical records only indicated left-wrist pain from a fall, not from a work-related incident, and her doctor attributed her carpal-tunnel syndrome symptoms to her morbid obesity. White v. Butterball, LLC, 2018 Ark. App. 7, 538 S.W.3d 240 (2018).

Workers' Compensation Commission did not err by finding that a claimant failed to establish a specific-incident compensable injury. Substantial medical evidence supported the Commission's finding that the claimant failed to prove a causal connection between any event on a specified date and his elbow condition; although it was one physician's opinion that the claimant's elbow condition resulted from an injury sustained at work, that opinion was based on the claimant's self-reported history, and objective medical evidence showed that the claimant had a prior history of elbow pain. Clark v. Williamson G.C., Inc., 2018 Ark. App. 331, 550 S.W.3d 458 (2018).

Substantial evidence supported the Workers' Compensation Commission's decision that the worker failed to meet her burden of proving that her back injury arose out of and in the course of her employment; her first low-back complaints began three months after her fall at work and she first sought treatment for her back pain 73 days after the fall, and given the lapse of time between her fall and the manifestation of her symptoms, reasonable persons might disagree about the causal connection between the two. Webb v. Wal-Mart Assocs., 2018 Ark. App. 627, 567 S.W.3d 86 (2018).

Substantial evidence supported the Workers' Compensation Commission's decision that the claimant failed to prove that her left-shoulder problems were causally connected to an incident at work as they were degenerative in nature. Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d 424 (2019).

Workers' Compensation Commission properly affirmed and adopted the findings of fact and conclusions of law made by an administrative law judge that an employee did not sustain the cervical injury in the same accident that caused a hairline fracture to her sternum because the employee did not convey any problems with her neck for two weeks, the initial medical records affirmatively indicated that there were no problems with her neck, and it could not be said that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Bledsoe v. Viskase Cos., 2020 Ark. App. 53 (2020).

—Disease.

Employee was entitled to an award for disability caused by an occupational disease or infection arising out of his employment. Solid Steel Scissors Co. v. Kennedy, 205 Ark. 958, 171 S.W.2d 929 (1943); Pekin Wood Prods. Co. v. Graham, 207 Ark. 564, 181 S.W.2d 811 (1944) (preceding cases decided under prior law); Shell Oil Co. v. Miller, 220 Ark. 546, 248 S.W.2d 698 (1952); Faust Band Saw Mill v. Richardson, 221 Ark. 336, 253 S.W.2d 213 (1952); Arkansas Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959); Chambers v. Bigelow-Liptak Corp., 233 Ark. 330, 344 S.W.2d 588 (1961); Donaldson v. Socia, 254 Ark. 158, 492 S.W.2d 253 (1973); Dega Poultry Co. v. Tanner, 259 Ark. 396, 533 S.W.2d 207 (1976).

An attack of angina pectoris which results in disability as defined in this section may constitute an injury giving rise to compensation if it arises out of and occurs in the course of employment. Nashville Livestock Comm'n v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990).

—Evidence.

Employee will not be denied recovery for injury caused by his work merely because he cannot point out any particular activity that caused him pain or increased pain or mention any incident when an activity produced an unusual or increased pain. Shainberg v. Dacus, 233 Ark. 622, 346 S.W.2d 462 (1961).

Expert medical testimony was not essential proof where evidence warranted finding of injury as to worker pinned between two machines. Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974); Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987).

Evidence was insufficient to support commission's finding that there was no causal relationship between the disability and the on-the-job injury. Boyd v. General Indus., 22 Ark. App. 103, 733 S.W.2d 750 (1987).

Evidence sufficient to support finding of an independent intervening cause. Appleby v. Belden Corp., 22 Ark. App. 243, 738 S.W.2d 807 (1987).

Evidence that employee sustained a compensable back injury due to a slip-and-fall at the hotel where he worked, held insufficient. Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996).

Claim for benefits for a back injury denied where claimant failed to show the injury was work-related and failed to support his claim with objective medical evidence. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).

Denial of benefits held improper where the medical evidence of the claimant's back injury was uncontroverted, the claimant gave adequate account of the injury, and the Commission gave inconsistent findings of fact. Jordan v. J.C. Penney Co., 57 Ark. App. 174, 944 S.W.2d 547 (1997).

The requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

The inconsistencies between claimant's testimony and the medical evidence persuaded the Commission that claimant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and during the course of his employment. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).

Pregnant employee who suffered a back injury held to have a compensable injury supported by objective findings, even though certain diagnostic X-rays could not be performed due to her pregnancy. University of Ark. Medical Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).

Physician's determination of impairment was not upheld where only range-of-motion tests were performed. Department of Parks & Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998).

Evidence of six-week healing period held sufficient where there was evidence that employee suffered from overuse syndrome affecting her left hand, and the condition improved after she stopped using her hand altogether for six weeks on the recommendation of her specialist. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998).

Injured worker failed to establish a compensable injury where he did not report an injury either to his foreman or to his physicians and he waited about 4 weeks to file a claim. Barnett v. Natural Gas Pipeline Co., 62 Ark. App. 265, 970 S.W.2d 319 (1998).

Evidence held insufficient to establish compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).

There were no objective findings in the record to support a diagnosis of de Quervain's tenosynovitis as required by subdivision (5)(A)(ii)( a ) of this section and, therefore, the claimant was not entitled to benefits for this diagnosis. Steveson v. Frolic Footwear, 70 Ark. App. 383, 20 S.W.3d 413 (2000).

Workers' Compensation Commission did not err in its determination that the employee's range of motion tests did not constitute objective findings to support an award of benefits where the tests were under the employee's voluntary control. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001).

Where it was established that: 1) the medical report prepared by the emergency room physician shortly after the accident specifically noted that the employee did not strike her head; 2) an authorized physician testified that it was more common to have a concussion in conjunction with a blow to the head and that a concussion would not likely occur in a slip-and-fall accident; and 3) the objective CT scan of employee's brain did not indicate an abnormality, substantial evidence existed to support the Workers' Compensation Commission's finding that the employee failed to establish evidence of a concussion or other brain injury. Sharp v. Lewis Ford, Inc., 78 Ark. App. 164, 78 S.W.3d 746 (2002).

Workers' Compensation Commission's decision affirming the administrative law judge's finding that an employee was entitled to permanent anatomical impairment was reversed and remanded where the commission failed to make the specific findings of fact necessary for the reviewing court to carry out a meaningful review of issues relating to whether the employee's injury was the major cause of his impairment, the permanency of the employee's condition, the assessment of the medical evidence, and the employee's impairment rating. Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003).

Workers' Compensation Commission did not err in affirming an administrative law judge's decision that claimant failed to prove by a preponderance of the evidence that his claimed cognitive dysfunction and psychological problems were causally related to a 440-volt electrical shock he suffered in an accident at work. Arbaugh v. AG Processing, Inc., 86 Ark. App. 303, 184 S.W.3d 53 (2004), aff'd, 360 Ark. 491, 202 S.W.3d 519 (2005).

Substantial evidence supported Workers' Compensation Commission's finding that claimant acted diligently in obtaining the additional medical evidence and that claimant sustained a compensable injury; the December 2001 MRI report and the February 2002 operative report, both introduced at the second hearing, constituted sufficient evidence to uphold the findings. Hargis Transp. v. Chesser, 87 Ark. App. 301, 190 S.W.3d 309 (2004).

Although employer argued that the only evidence of employee having muscle spasms was her self-serving testimony and the subjective history that she gave to an emergency room nurse five months after her alleged incident, it was undisputed that, at the time of the accident, the employee was diagnosed as having suffered thoracic and lumbar contusion and strain and that the company physician prescribed a medication for the relief of muscle spasms and other musculoskeletal conditions; thus, employer's argument that there was no medical evidence supporting objective findings of an injury was rejected and employee was entitled to temporary total disability benefits. Fred's, Inc. v. Jefferson, 89 Ark. App. 95, 200 S.W.3d 477 (2004), aff'd, 361 Ark. 258, 206 S.W.3d 238 (2005).

Employer's appeal of a worker's compensation award was affirmed as there was substantial evidence to support the Commission's finding that (1) the worker suffered a compensable injury under subdivision (4)(D) of this section, (2) it was not a recurrence of his prior back injuries, and (3) the Shippers defense was inapplicable. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).

Claimant was unable to prove the existence of a new injury as the objective medical findings were unchanged from claimant's prior work-related injury; thus, the denial of benefits for his low-back injury was proper. Liaromatis v. Baxter County Reg'l Hosp., 95 Ark. App. 296, 236 S.W.3d 524 (2006).

Award of benefits to employee for a repetitive injury was reversed as, while the evidence established that employee had engaged in repetitive motion, there was no evidence that the injury was the result of a rapid motion. Holland Group, Inc. v. Hughes, 95 Ark. App. 369, 237 S.W.3d 120 (2006).

Arkansas Workers' Compensation Commission erred in rejecting subjective evidence in determining that employee sustained no anatomical impairment as a result of his ankle injury as the injury was supported by objective findings which could not come under the employee's voluntary control. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).

Because the Arkansas Workers' Compensation Commission was the ultimate arbiter of weight and credibility of the complainant and other witnesses, the Commission's decision that the complainant proved that he sustained a compensable injury under subdivision (4) of this section to his middle back, thoracic spine, ribs, lower back, and lumbar spine was upheld. Baxter v. Baxter, 2012 Ark. App. 251, 413 S.W.3d 561 (2012).

It was the worker's burden to prove that his back injury arose out of and in the course of his employment, in addition to the other requirements for a compensable injury; his conflicting statements regarding the cause of his injury were indeed relevant to the determination of whether he proved that he sustained a compensable injury, and the administrative law judge did not deny the claim based on a failure to give sufficient notice. Leming v. La-Z-Boy, Inc., 2015 Ark. App. 336, 463 S.W.3d 719 (2015).

Substantial evidence supported the Workers' Compensation Commission's decision that an employee failed to establish that she had sustained a compensable back injury while working for the employer because the employee admitted she had been treated for back pain prior to the accidents; the employee did not immediately report the accident to her employer and paid for the medical treatment herself, and no coworker knew about the accident or the injury until several weeks after the occurrence. Halliday v. N. Ark. Reg'l Med. Ctr., 2016 Ark. App. 392, 500 S.W.3d 198 (2016).

Employee argued that because no alternative explanation for his knee injury was proven or even offered, the Workers' Compensation Commission was required to speculate to find that his claim was not compensable, but the court disagreed; to prove the occurrence of a specific-incident compensable injury, employee had to establish that the injury was one arising out of and in the course of employment, and as the Commission was to determine credibility, weigh the evidence, and resolve conflicts in medical testimony and evidence, the Commission's decision was supported by substantial evidence in this case. Godwin v. Garland Cnty. Landfill, 2016 Ark. App. 498, 504 S.W.3d 660 (2016).

Workers' Compensation Commission did not err in finding that a claimant's compensable injury was established by objective medical evidence given the treating physician's treatment notes, and the progression of the injury that led to amputation of the claimant's toe. St. Jean Indus. v. Ezell, 2016 Ark. App. 516, 504 S.W.3d 679 (2016).

Workers' Compensation Commission's decision denying compensability of a worker's claim was supported by substantial evidence where the Commission had considered a treating physician's report noting the presence of muscle spasms in the cervical and lumbar spine, the evidence that the claimant suffered from preexisting conditions in his neck, back, hip, and head, the Commission found the claimant not credible based on his conflicting answers about the extent of his injuries, and the case turned on the claimant's credibility. Johnson v. P.A.M. Transp., Inc., 2017 Ark. App. 514, 529 S.W.3d 678 (2017).

Substantial evidence supported the Workers' Compensation Commission's finding that a claimant failed to prove physical bodily harm where it focused on a medical note in a treating physician's report stating that the incident in which the claimant lifted a lot of weight did not or may not have caused the radiological findings in his back. Grantham v. Hornbeck Agric. Group, LLC, 2017 Ark. App. 520, 529 S.W.3d 666 (2017).

Workers' Compensation Commission did not err in concluding that a truck driver suffered a compensable injury when he tripped and fell; the Commission weighed the conflicting evidence, the employer pointed to no evidence indicating that the driver had a herniated disc before the fall, and an MRI indicated acute disc herniation that a neurosurgeon causally correlated to the incident at work. Marten Transp., Ltd. v. Morgan, 2017 Ark. App. 608, 532 S.W.3d 139 (2017).

Workers' Compensation Commission's findings as to the date of compensability were supported by substantial evidence; the finding that the claimant sustained compensable back injuries in a later incident while working on a farm was supported by objective medical findings, while there was a lack of objective medical findings to support the claimant's claim of a compensable back injury in an earlier incident at work. Wall Farms, LLC v. Hulsey, 2017 Ark. App. 624, 534 S.W.3d 771 (2017).

—Head Injury.

Workers' Compensation Commission did not err in affirming and adopting the administrative law judge's opinion that the claimant sustained a compensable head injury as there was substantial evidence to support the finding that she fell off a yoga ball at work and suffered a scalp contusion. The Commission did not err in giving more weight to an audiologist's opinion that the claimant's current complaints were caused by her fall at work and not her preexisting conditions; the audiologist found that the ringing in the claimant's ears was made worse after her fall due to swelling in the nerves, and that her current vertigo complaint more likely than not was a result of the impact to her head, and not the 2012 car accident. Northwest Ark. Cmty. College v. Migliori, 2018 Ark. App. 286, 549 S.W.3d 399 (2018).

—Hemorrhoids.

Hemorrhoids are not a compensable injury as defined by subdivision (5)(A)(ii) of this section. Tillman v. Baldwin & Shell Constr., 58 Ark. App. 177, 948 S.W.2d 118 (1997).

—Idiopathic Injuries.

Idiopathic injury is one whose cause is personal in nature, or peculiar to the individual; injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. Crawford v. Single Source Transp., 87 Ark. App. 216, 189 S.W.3d 507 (2004).

Because an idiopathic injury is not related to employment, it is generally not compensable unless conditions related to the employment contribute to the risk by placing the employee in a position, which increases the dangerous effect of the fall. Crawford v. Single Source Transp., 87 Ark. App. 216, 189 S.W.3d 507 (2004).

Substantial evidence did not exist to support the finding that employee's injury was idiopathic and noncompensable because there was no evidence presented that employee's broken foot was caused by his diabetes. Swaim v. Wal-Mart Assocs., 91 Ark. App. 120, 208 S.W.3d 837 (2005).

—Independent Intervening Cause.

If there is a causal connection between a primary compensable injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity of the claimant that is “unreasonable under the circumstances.” Davis v. Old Dominion Freight Line, 341 Ark. 751, 20 S.W.3d 326 (2000).

Workers’ Compensation Commission properly denied death benefits to a deceased worker’s surviving beneficiaries because the decedent had been using opiates for some time prior to his compensable injury, had a proclivity to drug addiction, and the decedent’s overdose and resultant death was unreasonable and an independent intervening cause not related to the work where he took a substantial overdose of methadone that was not in response to uncontrolled pain, but was instead simply the result of his drug addiction. Loar v. Cooper Tire & Rubber Co., 2014 Ark. App. 240 (2014).

Workers' Compensation Commission properly awarded an employee additional-medical benefits because he had been receiving various benefits for nearly two years before he filed an AR-C Form, the first hearing on the employee's claim for additional-medical benefits was held more than eight years later, the “additional follow-up care” sought by the employee was reasonably necessary medical treatment, and a subsequent car wreck was not an independent intervening cause of the employee's need for further medical treatment where his conduct was not unreasonable and he was never restricted from driving by any doctor. Nabholz Constr. Corp. v. White, 2015 Ark. App. 102 (2015).

Substantial evidence supported the findings that a worker's compensation claimant, who had worked as a correctional officer for 23 years, was entitled to 20% wage-loss disability in addition to a 3% anatomical rating and that the compensable back injury was the major cause of the disability, despite the employer's contention that an unauthorized surgery constituted a nonwork-related independent intervening cause that was improperly considered in awarding wage loss. The findings were based on proper wage-loss factors, the opinion adequately discussed the rationale, and the causation findings were supported by the claimant's testimony and medical evidence. Ark. Dep't of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 (2019).

—Injury Off Premises.

Injuries or death occurring off of employer's premises held to be compensable. Hunter v. Summerville, 205 Ark. 463, 169 S.W.2d 579 (1943); Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S.W.2d 573 (1947) (preceding cases decided under prior law); Owens v. Southeast Ark. Transp. Co., 216 Ark. 950, 228 S.W.2d 646 (1950); American Cas. Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41 (1955); Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S.W.2d 637 (Ark. 1955); Arkansas Power & Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958); Fine Nest Trailer Colony, Inc. v. Reep, 235 Ark. 411, 360 S.W.2d 189 (1962); Bechtel Corp. v. Winther, 262 Ark. 361, 556 S.W.2d 882 (1977); Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ct. App. 1979); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982); Daniels v. Commercial Union Ins. Co., 5 Ark. App. 142, 633 S.W.2d 396 (1982); University of Ark. Medical Sciences Ctr. v. Raleigh, 14 Ark. App. 277, 688 S.W.2d 303 (1985); Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987).

Injury or death occurring off of employer's premises held not to be compensable. Fox Bros. Hdwe. Co. v. Wilson, 206 Ark. 680, 177 S.W.2d 44 (1944); Stroud v. Gurdon Lumber Co., 206 Ark. 490, 177 S.W.2d 181 (1944) (preceding cases decided under prior law); Penny v. Hudson Dairy, 218 Ark. 594, 237 S.W.2d 893 (1951); Pearson v. Faulkner Radio Serv. Co., 220 Ark. 368, 247 S.W.2d 964 (1952); Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957); Johnson v. Clark, 230 Ark. 275, 322 S.W.2d 72 (1959); Beckerman v. Owosso Mfg. Co., 233 Ark. 973, 350 S.W.2d 321 (1961); McCollum v. Rogers, 238 Ark. 499, 382 S.W.2d 892 (1964); Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967); Carter v. Ward Body Works, Inc., 246 Ark. 515, 439 S.W.2d 286 (1969); Wilson v. UAW Int'l Union, 246 Ark. 1158, 441 S.W.2d 475 (1969); Willis v. Dumas, 250 Ark. 496, 466 S.W.2d 268 (1971); Chicot Mem. Hosp. v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983); Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

The general rule is that injuries sustained by employees going to and from their regular place of employment are not deemed to arise out of or in the course of their employment. Blankinship Logging Co. v. Brown, 212 Ark. 871, 212 Ark. 948, 208 S.W.2d 778 (1948) (decision under prior law) Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987); Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987); Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995).

When a vehicle is supplied by the employer for mutual benefit of himself and the worker to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. Blankinship Logging Co. v. Brown, 212 Ark. 871, 212 Ark. 948, 208 S.W.2d 778 (1948) (decision under prior law).

Whether an employee is acting in the course of his employment in going to or from the place of his employment will depend largely upon the particular facts and circumstances of each case under this chapter. Owens v. Southeast Ark. Transp. Co., 216 Ark. 950, 228 S.W.2d 646 (1950).

The course of employment of a traveling salesman covers the time and place of traveling as well as the selling of goods. Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S.W.2d 637 (Ark. 1955).

Where the trip or attendance of a traveling salesman is one ordered or directed by the employer or is for the mutual benefit of employer and employee, compensation may be recovered for injury during the trip. Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S.W.2d 637 (Ark. 1955).

Exceptions to the general rule that an employee is not in the course of his employment while going to or returning from his home in which off-premises injuries are held compensable, involved situation (1) where the employee is subject to call at all hours, and (2) when the employee has a duty to perform for the employer while en route home. Arkansas Power & Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958).

Question as to whether or not injury of employee who has left employer's premises is compensable was not how near he may have been to his employer's premises when he was injured but whether he was performing any duty in connection with his employment or was at the point of the accident at his employer's direction, or was using facilities supplied by the employer. Beckerman v. Owosso Mfg. Co., 233 Ark. 973, 350 S.W.2d 321 (1961).

The street adjacent to employer's plant could not be considered as part of employer's premises for workers' compensation purposes even though the street at the point of the plant was heavily used by employer. Beckerman v. Owosso Mfg. Co., 233 Ark. 973, 350 S.W.2d 321 (1961).

The criteria for applying the special hazard exception to the going and coming rule is not sheer distance or proximity but rather the causal connection between the injury and the employment, nor is the exception necessarily inapplicable due to the existence of an alternate route. Bechtel Corp. v. Winther, 262 Ark. 361, 556 S.W.2d 882 (1977).

In order for an injury incurred while the employee is going to work to be compensable, the employee must fall within one of the exceptions to the going and coming rule such as where an employee is injured while in close proximity to the employer's premises, where the employer furnishes the transportation to or from work, where the employee is a traveling salesman, where the employee is injured on a special mission or errand, or when the employer compensates the employee for his time from the moment he leaves home until he returns home. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982).

An injury sustained by a worker riding in a private automobile while going home from work is not a compensable one where the employer pays an insubstantial portion of the travel expense. Chicot Mem. Hosp. v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983).

Injury during a trip which serves both a business and a personal purpose is within the course of employment if the work of the employee creates the necessity for travel; if, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk. Rankin v. Rankin Constr. Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984); Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987).

Employee was in the course of his employment when he turned from his route to the restaurant where he was employed to go to the catering kitchen to pick up the equipment he had been directed to return to the restaurant, as it is clear that someone would have had to get this equipment and take it to the restaurant and once the employee turned toward the catering kitchen for that purpose, he was, at least, on a “dual-purpose” journey and therefore in the course of his employment. Jane Traylor, Inc. v. Cooksey, 31 Ark. App. 245, 792 S.W.2d 351 (1990).

The risk of injury during the course of a trip by the claimant to retrieve forgotten medication needed for a compensable first injury is one which, on balance, ought not to be borne by the employer, thus, the second injury sustained during such a trip is not compensable. Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990).

A determination that a trip falls within the “dual purpose” exception to the going and coming rule does not end the inquiry; instead, the dual purpose doctrine merely serves to label the overall trip as either business or personal: deviations from the main purpose require a separate inquiry. Day v. Central Day Care, Inc., 38 Ark. App. 241, 833 S.W.2d 783 (1992).

Where claimant had completed her employer's errand and was returning to work in her vehicle, the commission could properly find that slipping on ice while pursuing a personal errand was a risk of the deviation, rather than of the employment. Day v. Central Day Care, Inc., 38 Ark. App. 241, 833 S.W.2d 783 (1992).

Some nexus between the employment and travel must be present in order for a claimant to recover for injuries sustained on a trip from his employer's premises to his home. Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995).

Although claimant was not directly compensated for her travel time, because traveling was an inherent and necessary incident of the claimant's required employment activity, the claimant was “performing employment services” under subdivision (5)(B)(iii) when she was injured while en route from her employer's office to a client's home. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), aff'd, 328 Ark. 381, 944 S.W.2d 524 (1997).

The premises exception to the going-and-coming rule has effectively been eliminated by subdivision (5)(B)(iii). Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997).

—Intoxicants.

Where claimant's laboratory test results showed high levels of cannabinoids in his urine on the day he was injured, under subdivision (5)(B)(iv), this created a rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs. Weaver v. Whitaker Furn. Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996).

There was no presumption under subsection (5)(B)(iv) that the injury was substantially occasioned by the alcohol or drugs where the urine specimen was not collected until two days after the injury and the employee has a credible explanation for the presence of codeine in the urine. Morrilton Manor v. Brimmage, 58 Ark. App. 252, 952 S.W.2d 170 (1997).

Urine test showing presence of marijuana metabolites was sufficient evidence to invoke the presumption that employee's accident was substantially occasioned by the use of marijuana. Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998), review denied, 334 Ark. 35, 970 S.W.2d 807 (1998); Graham v. Turnage Emp. Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), review denied, 334 Ark. 32, 970 S.W.2d 808 (Ark. 1998).

This section does not require that the Commission promulgate drug-testing procedures or specify particular types of tests to be used as a precondition to the intoxication presumption in subdivision (5)(B)(iv); the Arkansas General Assembly could have required testing that would show a certain level of illegal drugs, as it has required to invoke the presumption in D.W.I. cases, but it has not made such a requirement. Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998), review denied, 334 Ark. 35, 970 S.W.2d 807 (1998); Graham v. Turnage Emp. Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), review denied, 334 Ark. 32, 970 S.W.2d 808 (Ark. 1998); Rudick v. Unifirst Corp., 60 Ark. App. 173, 962 S.W.2d 819 (1998).

A blood-alcohol level of less than 0.01% was low enough to rebut the presumption that employee's injury was substantially occasioned by alcohol. ERC Contractor Yard & Sales v. Robertson, 60 Ark. App. 310, 961 S.W.2d 36 (1998), aff'd, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998).

Employee's long term use of alcohol did not disqualify him from receiving workers' compensation disability benefits where he had not consumed alcohol on the date of the injury, even though he was injured as a result of a fall caused by an alcohol-withdrawal seizure. ERC Contractor Yard & Sales v. Robertson, 60 Ark. App. 310, 961 S.W.2d 36 (1998), aff'd, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998).

A worker failed to rebut the presumption that his motor vehicle accident was caused by the use of illegal drugs where he tested positive for opiates and cocaine metabolites and the only evidence presented to rebut the presumption was his own uncorroborated testimony concerning the nature and extent of his drug use and his own uncorroborated testimony regarding his interpretation of the cause of his accident. Ester v. National Home Ctrs., Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998).

An employee rebutted the presumption that a motor vehicle accident in which he was involved was substantially occasioned by the use of alcohol, notwithstanding that he was found to have a blood alcohol level of .021 percent, where he was driving between 6:00 and 7:00 PM. on a two-lane road under the posted speed limit, it was raining and foggy, his trailer was empty, he was cut off by another vehicle, he passed a field sobriety test administered by the investigating officer, and he was not cited for being under the influence of alcohol. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998).

An employee who tested positive for marijuana metabolites 2 days after an accident in which he fell through a hole cut in the roof of a new building while carrying a 4 foot by 16 foot board with his supervisor rebutted the statutory presumption that his injury was substantially occasioned by the use of marijuana where he testified that he had not smoked marijuana on the day of the accident or in the preceding few days, the manner in which he carried the board prevented him from seeing the hole, and he was fatigued because he had worked 7 days in a row and was in his 28th hour of overtime. Express Human Resources v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998).

A blood test which showed a blood alcohol level of less than .01 percent was sufficient to trigger the statutory presumption that an injury was substantially occasioned by the use of alcohol. ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998).

The phrase “substantially occasioned by the use of alcohol” requires that there be a direct causal link between the injury and the use of alcohol, rather than the abstinence from the use of alcohol, and, therefore, the fact that the claimant's accident was caused by an alcohol-withdrawal seizure did not allow a finding that the accident was substantially related to the use of alcohol. ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998).

Evidence held sufficient to rebut the statutory presumption that the claimant's injury was substantially occasioned by the use of alcohol where (1) the claimant's supervisor testified that the claimant did not use alcohol on the day of his accident, (2) the medical reports reflected that the claimant told his doctors that he did not use alcohol on the day of the accident, (3) the claimant's girlfriend told his doctors that the claimant did not use alcohol on the day of the accident, and (4) the claimant's doctors concurred that a seizure related to alcohol-withdrawal syndrome caused the claimant's accident. ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998).

The presence of alcohol in an employee's body was not proven simply by testimony that his breath smelled of alcohol, since the evidence presented did not negate the reasonable hypothesis that such smell might have come from his previous night's drinking, especially in light of his testimony that he drank several beers the night before his accident, that he slept in his clothes and wore the clothes to work the next morning, and that he did not brush his teeth prior to departing for work. Flowers v. Norman Oaks Constr. Co., 68 Ark. App. 239, 6 S.W.3d 118 (1999), rev'd, 341 Ark. 474, 17 S.W.3d 472 (2000).

In a proceeding pertaining to the electrocution of a tree service employee which occurred when he was struck in the face by an energized wire which fell from a tree branch he picked up, the Workers' Compensation Commission properly found that the presence of marijuana metabolites in the employee's system constituted the presence of an illegal drug and therefore invoked the rebuttable presumption found in subsection (5)(B)(iv)( b ) of this section that his death was substantially occasioned by the use of marijuana. Wood v. West Tree Serv., 70 Ark. App. 29, 14 S.W.3d 883 (2000).

A finding of the presence of alcohol in the claimant's body was supported by substantial evidence, notwithstanding the absence of medical testing, where (1) the claimant admitted that he drank 6 to 8 beers the night before the accident, and stated that he went to bed by 11:00 or 11:30 p.m. the night before the accident and left for work on the morning of the accident at about 6:30 a.m., (2) upon arrival at the accident scene, paramedics noted a strong smell of alcohol about the claimant at 8:45 a.m., (3) the registered nurse at the hospital reported that the claimant had a smell of alcohol about his breath, (4) when the claimant was readmitted to the hospital a week later complaining of hallucinations, his medical records stated that he admitted that he habitually drank a twelve-pack or six-pack of beer a day, and (5) there was circumstantial evidence that the claimant drank at the job site. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000).

Substantial evidence existed for the Worker's Compensation Commission to deny relief to the claimant where he both readily admitted smoking crack cocaine the night before he fell from rickety scaffolding and admitted that he tested positive for a drug screen on the date of the accident. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000).

The presence of alcohol in an employee's body need not be proven by medical testing but can also be proven by testimony that a claimant was seen consuming alcohol prior to his accident, had slurred speech, and was unsteady on his feet. Flowers v. Norman Oaks Constr. Co., 68 Ark. App. 239, 6 S.W.3d 118 (1999), rev'd, 341 Ark. 474, 17 S.W.3d 472 (2000).

Evidence was sufficient to rebut the presumption that the claimant's injury was caused by her use of intoxicants where (1) the claimant's hand was caught in a press she was operating, (2) a drug test two days later found codeine and methamphetamine in her system, and (3) the plant supervisor testified that within a 24 hour period another person was injured while running the same machine, that he personally checked the safety devices on the machine on the date of the accident, and that since the accident the company had put a double hand control button on the press, and (4) the safety supervisor testified that the accident was caused by a “pinch point” and that it was corrected with a double hand-actuating device. Bice v. Waterloo Indus., Inc., 71 Ark. App. 1, 26 S.W.3d 129 (2000).

Claimant was awarded workers' compensation benefits where the Workers' Compensation Commission held that the claimant had rebutted the presumption contained in subdivision (4)(B)(iv)( b ) and proved by a preponderance of the evidence that the accident in which he was injured was not “substantially occasioned” by the use of illegal drugs. Sys. Contr. Corp. v. Reeves, 85 Ark. App. 286, 151 S.W.3d 18 (2004).

Workers' Compensation Commission did not err in failing to find any indication that, on the date of a fatal injury, illegal drugs had caused the accident where none of claimant's co-workers saw him use drugs or otherwise exhibit signs of impairment and not one of the expert toxicologists could state when claimant had ingested the drugs. Ark. Elec. Coop. v. Ramsey, 87 Ark. App. 254, 190 S.W.3d 287 (2004).

Degloving injury to the genitalia and scrotum was not substantially occasioned by the use of drugs under subdivision (4)(B)(iv)( a ) of this section; even though a positive drug test gave rise to a presumption, that was rebutted by the testimony of co-workers that the employee did not appear to be under the influence at any time. Ward v. Hickory Springs Mfg. Co., 97 Ark. App. 311, 248 S.W.3d 482 (2007).

Workers' Compensation Commission properly awarded temporary total-disability benefits to an employee because the Commission found that the employer and its insurance carrier failed to establish the presence of illegal drugs in the employee's body, and the rebuttable statutory presumption was not triggered; no urine, blood, or hair-follicle test was administered, no drug or drug paraphernalia was found on the employee's person, and, while the employee allegedly said that he ingested methamphetamine within 24 hours of the accident, no medical personnel were questioned about what he supposedly said, and the employee's testimony that he was still being treated for his injury was substantial evidence that he was within his healing period when the hearing occurred. Nat'l Transit Staffing, Inc. v. Norris, 2018 Ark. App. 229, 547 S.W.3d 730 (2018).

Appellate court affirmed the Workers' Compensation Commission's decision denying an employee's claim for benefits based on his failure to rebut the statutory presumption that the accident was substantially occasioned by alcohol; although witnesses testified that there was no indication that the employee was intoxicated, the employee's blood tested positive for alcohol at the hospital on the morning of his one-car accident, which had occurred while he was driving to the airport to travel to meet with an out-of-state customer, and a physician/toxicologist, who testified as an expert witness, opined that alcohol contributed significantly to the cause of the accident. Papageorge v. Tyson Shared Servs., 2019 Ark. App. 603, 590 S.W.3d 800 (2019).

Denial of benefits to a claimant was appropriate because the Workers' Compensation Commission found that the claimant failed to rebut the presumption that her injury was substantially occasioned by the use of illegal drugs when she severed part of her finger while using a cutting machine and tested positive for marijuana metabolites immediately after the accidental injury. The claimant, who had been at the job only five days when injured, offered no evidence except her self-serving testimony as to how and whether she was trained by the employer. Blair v. Am. Stitchco, Inc., 2020 Ark. App. 38 (2020).

Claimant, who tested positive for marijuana, failed to rebut the statutory presumption that his work-related injury was substantially occasioned by the use of illegal drugs; further, the Workers' Compensation Commission made express findings regarding the credibility of the witnesses and it is not the role of the appellate court to reweigh the evidence. Allen v. Employbridge Holding Co., 2020 Ark. App. 127 (2020).

—Medical Expenses.

Although claimant failed to prove a compensable injury, the employer was responsible for those medical expenses which were incurred by the claimant at the employer's direction. Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810 (1996).

—Mental Injury.

This section and § 11-9-113(a)(1) set out a requirement that a physical injury precede and cause the mental injury in order for the mental injury to be compensable under this chapter. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

—Neck.

Medical tests detected only early degenerative neck changes and contained no findings supporting a neck injury attributable to a traumatic event at work; there was a failure of proof of objective medical findings to support a compensable neck injury. Lowe's Home Ctrs. v. Pope, 2016 Ark. App. 93, 482 S.W.3d 723 (2016).

—New Injury.

Workers' Compensation Commission properly awarded an employee temporary total disability compensation because he proved he had a compensable injury; the objective evidence showed that the employee's injuries prior to surgeries had been greatly improved, if not eradicated, by the time he returned to work after surgery and were aggravated by the work injury he received the day after he returned to work. City of El Dorado v. Smith, 2017 Ark. App. 307, 521 S.W.3d 523 (2017).

Workers' Compensation Commission did not err in finding that an employee remained in his healing period after he saw a doctor. The doctor appeared to have given contrary opinions, one in which the employee experienced a new work injury that aggravated his pre-existing conditions and another in which he was not suffering from a new injury with his symptoms simply being a continuation of previous, pre-surgery symptoms, and the appellate court deferred to the commission's resolution of conflicting evidence. City of El Dorado v. Smith, 2017 Ark. App. 307, 521 S.W.3d 523 (2017).

Workers' Compensation Commission did not err in awarding an employee medical benefits in the form of surgery because the employee testified that a doctor was recommending surgery, and there was no evidence before the Commission to the contrary. City of El Dorado v. Smith, 2017 Ark. App. 307, 521 S.W.3d 523 (2017).

—Not Shown.

There was a substantial basis for the Workers' Compensation Commission to find that the claimant failed to establish a compensable lower-back injury, given the lapse of time between the injury and the claimant's complaints of lower-back pain and doctors' opinions that the lower-back MRI showed degenerative, preexisting changes. Newby v. Century Indus., 2017 Ark. App. 527, 530 S.W.3d 386 (2017).

Workers' Compensation Commission properly found that the claimant failed to prove that she sustained a compensable injury; there was simply no evidence of a specific injury other than the claimant's own testimony, and witness credibility was for the Commission to decide. Johnson v. NPC Int'l, Inc., 2018 Ark. App. 25, 538 S.W.3d 859 (2018).

Workers' Compensation Commission properly determined that a worker did not suffer a compensable injury when he allegedly slipped and fell on a sheet of ice on a freezer floor because the Commission specifically found the worker not to be a credible witness, there were no witnesses to corroborate his claim, the worker did not report the incident until over a month later after the accident, he gave competing reasons for his neck pain to his medical providers, and an MRI only noted degenerative changes. Collier v. Walmart Assocs., 2018 Ark. App. 129, 544 S.W.3d 69 (2018).

There was a substantial basis for the Workers' Compensation Commission's denial of a worker's claim where there was no indication in her medical records that her back injury was work-related, she had no witness to corroborate her story about the alleged cause of her neck or back problems, and she never reported any alleged work-related incident to her supervisor until her doctor sent her for an MRI almost a month after she claimed the alleged incident occurred. Gunter v. Bill's Super Foods, Inc., 2018 Ark. App. 134, 544 S.W.3d 571 (2018).

Claimant failed to prove that he sustained a compensable injury while employed by the logging company because the Commission believed the testimony of the logging company's witnesses that the claimant did not injure himself in the woods lifting a boulder on May 9, 2016, and did not complain of — or report — an injury or back pain; the logging company introduced evidence that the claimant had been involved in a traumatic high-speed ATV accident that had put him off work for two weeks just over a month before his alleged back injury; and the evidence before the Commission could have supported a finding that the claimant went to the emergency room on May 9, 2016, seeking drugs and was willing to fabricate an injury to obtain them. Hargis v. Lovett, 2018 Ark. App. 227, 547 S.W.3d 724 (2018).

Workers' Compensation Commission's finding that an employee's right-knee injury was not work-related was supported by the evidence because the employee did not experience pain or swelling in her right knee until after her knee popped and buckled while she was standing at church; the employee was able to complete her job duties and drive herself to church without any indication that she was injured. McCutchen v. Human Dev. Ctr., 2018 Ark. App. 239, 547 S.W.3d 508 (2018).

Workers' Compensation Commission did not err in denying medical treatment for the claimant's lower back, wrists, and thumbs as she failed to prove that she sustained any compensable injuries other than the stipulated compensable injuries to her right arm and left knee; claimant did not show that the additional injuries were causally connected to her work accident as the claimant did not report those injuries during her treatment on the day of the accident, another doctor's MRI of the claimant's lumbar spine showed chronic degenerative problems with no reference to an acute injury, and x-rays of her thumbs revealed degenerative arthritis. Davis v. Remington Arms Co., 2018 Ark. App. 390, 557 S.W.3d 894 (2018).

Substantial evidence supported the Workers' Compensation Commission's decision to deny benefits to a pro se claimant because medical records revealed that, for years before the claimant's fall at work, the claimant suffered from the physical symptoms that she alleged were the result of the injury at work. Furthermore, there was no post-accident medical evidence to establish any of the claimant's alleged injuries with objective findings as required. Marshall v. Ark. Dep't of Corr., 2020 Ark. App. 112 (2020).

—Performing Employment Services.

Claimant, a staff pharmacist, sustained a compensable injury, as he was performing employment services when he broke his leg climbing the curb of the pharmacy because he approached the pharmacy to check on the building after the security alarm sounded. There was testimony that claimant and the pharmacy manager agreed that claimant had to go to the pharmacy to check the alarm; and there was testimony that the police refused to disclose whether the building had been physically breached, which related directly to claimant's job description that he was responsible for ensuring the premises were secure and for preventing loss. Kroger Ltd. P'ship I v. Bess, 2018 Ark. App. 404, 555 S.W.3d 417 (2018).

—Preexisting Infirmity.

Work-related activity aggravated preexisting injury which resulted in compensable injury. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943) (decision under prior law); Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S.W.2d 26 (1951); W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S.W.2d 68 (1954); Magnet Cove Barium Corp. v. Evans, 226 Ark. 524, 291 S.W.2d 237 (1956); Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956); Safeway Stores, Inc. v. Harrison, 231 Ark. 10, 328 S.W.2d 131 (1959); Reynolds Metals Co. v. Robbins, 231 Ark. 158, 328 S.W.2d 489 (1959); Allen v. Clark, 233 Ark. 394, 345 S.W.2d 371 (1961); McGeorge Constr. Co. v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961); Massey Ferguson, Inc. v. Flenoy, 270 Ark. 126, 603 S.W.2d 463 (1980).

An employee who collapses under an excessive work load is entitled to workers' compensation as suffering an accidental injury arising out of the employment, even though he had a preexisting weakness, known to him and his employer, which contributed to the collapse. Tri-States Constr. Co. v. Worthen, 224 Ark. 418, 274 S.W.2d 352 (1955).

An injury which brings about an aggravation of a preexisting condition is compensable under this chapter. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943) (decision under prior law); Hamilton v. Kelley-Nelson Constr. Co., 228 Ark. 612, 309 S.W.2d 323 (1958); Safeway Stores, Inc. v. Harrison, 231 Ark. 10, 328 S.W.2d 131 (1959); Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

Preexisting disease or injury held not aggravated by work-related activity. Arkansas Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959); C.P. Chaney Sawmill, Inc. v. Robertson, 233 Ark. 711, 348 S.W.2d 703 (1961); Mounts v. Bechtel Corp., 256 Ark. 318, 507 S.W.2d 99 (1974); Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996).

The performance of labor by an employee who dies soon afterwards because of a heart attack may be considered as an aggravation of a preexisting condition, and it makes no material difference whether the attack precedes the labor or the labor precedes the attack if the labor performed hastens the death. Reynolds Metals Co. v. Robbins, 231 Ark. 158, 328 S.W.2d 489 (1959).

Where employee suffers a heart attack and then performs some labor after which he collapses and dies, the fact that he was only engaged in his ordinary and normal duties at the time of his death does not bar recovery. Reynolds Metals Co. v. Robbins, 231 Ark. 158, 328 S.W.2d 489 (1959); Rebsamen West, Inc. v. Bailey, 239 Ark. 1100, 396 S.W.2d 822 (1965).

When industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable and no attempt is made to weigh the relative contribution of the accident and the preexisting condition to the final disability. McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961).

It is not necessary that an injury be caused by unusual strain or exertion before it is compensable, but rather, the claim is compensable when the claimant's ordinary work aggravates a preexisting condition, and thus contributes to the injury. McGeorge Constr. Co. v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961).

While Arkansas Supreme Court has not held that “any” heart attack on the job is compensable, where there is medical testimony that the work aggravated or hastened the occlusion the finding of the commission awarding disability benefits will not be reversed. Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W.2d 872 (1967).

Substantial evidence supported commission's finding of a separate and distinct injury rather than recurrence of former injury. Curtis Mathes of Ark., Inc. v. Summerville, 256 Ark. 340, 507 S.W.2d 108 (1974).

A preexisting disease or infirmity of an employee does not disqualify his claim under the requirement that the disability arise out of the employment where the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Little v. Delta Rice Mill, Inc., 11 Ark. App. 114, 667 S.W.2d 373 (1984).

When a preexisting injury is aggravated by a later compensable injury, compensation is in order. However, a claimant must prove that a compensable injury is the cause of any aggravation to a preexisting injury. Wade v. Mr. C. Cavenaugh's, 25 Ark. App. 237, 756 S.W.2d 923 (1988), superseded, 298 Ark. 363, 768 S.W.2d 521 (1989).

In workers' compensation law, the employer “takes the employee as he finds him” and employment circumstances that aggravate pre-existing conditions are compensable. Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992).

Where an employee's disability had been worsened by her diabetes and obesity, which in turn had been exacerbated by the failure to follow diets prescribed for her, there was no evidence to support the Workers' Compensation Commission's conclusions that the employee's disability would be less than total were it not for the flare up of her diabetic condition, and no substantial basis for the commission's conclusion that she failed to prove entitlement. Weller v. Darling Store Fixtures, 38 Ark. App. 95, 828 S.W.2d 858 (1992).

Evidence held sufficient to support determination that employee suffered a compensable injury when she dislocated her shoulder while reaching under a patient's bed, even though she had other episodes in her past when her shoulder popped out. St. Vincent Infirmary Medical Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).

An employee's second foot injury was a compensable consequence of his initial work-related injury where the employee dropped a sledge hammer on his foot at work and sustained a nondisplaced fracture, he returned to work in a few days wearing protective boots, and, a few days later, stepped on or tripped over a tree root while in a park for a church function and sustained a displaced fracture of his foot. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998).

Substantial evidence supported the determination that a claimant's back injury did not aggravate a preexisting condition (a “propensity to obesity”), and the claimant was not entitled to an evaluation for weight-loss surgery and additional temporary total disability benefits. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999).

Decision of the Arkansas Workers' Compensation Commission that an employee did not prove that he suffered a compensable back injury, because the injury was the result of a preexisting degenerative disk disease and prior back surgeries, was supported by substantial evidence, particularly in light of the evidence that he had suffered a previous back injury and had undergone two neck surgeries and four back surgeries. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008).

Workers' Compensation Commission properly denied compensability because an employee failed to prove an aggravation of a preexisting condition and to support his claim with new objective medical findings where he had been diagnosed with significant left-knee problems prior to his employment with the employer, arthroscopic surgery had already been recommended, and the employee failed to disclose his preexisting condition on an employment questionnaire. Willis v. Great Dane Trailers, 2014 Ark. App. 547, 444 S.W.3d 423 (2014).

—Psychological Injury.

There is no reason why harm to the body of a worker should be limited to visible physical injury to the bones and muscles and should exclude work-related trauma which results in an injury to the mind; accordingly, psychological trauma injuries may be compensable under this chapter. Owens v. National Health Labs., Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983).

Where the psychological injury, if any, resulted from nontraumatically induced events, the claimant must show more than the ordinary day-to-day stress to which all workers are subjected in order to recover compensation for his psychological injuries. Owens v. National Health Labs., Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983); Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983).

Whether stress is more than ordinary and the psychological injury is causally connected to it or aggravated by it are questions of fact for the commission to determine. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983).

Commission finding that claimant's disability due to mental illness did not arise out of and in course of employment was supported by evidence. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983).

Conversion reaction is a compensable condition, and the court will award benefits for a psychological reaction to a compensable injury. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).

Where employee's current psychological problems bore a causal relationship to his work-related injury, decision of Worker's Compensation Board mandating temporary total disability benefits was affirmed. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).

—Rapid Repetitive Motion.

Motions of delivery truck driver, who briefly performed several different rapid motions, repeated at differing intervals and separated by periods of several minutes, did not constitute rapid repetitive motion under the meaning of subdivision (5)(A)(ii)( a ) of this section. Lay v. UPS, 58 Ark. App. 35, 944 S.W.2d 867 (1997).

Claimant's assembly line work of gripping, twisting, and squeezing wires to secure small components to boards all day long qualified as “rapid repetitive” in the ordinary and generally accepted meaning of the words. Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997), rev'd, 333 Ark. 335, 969 S.W.2d 190 (1998).

In the most compelling case demonstrating rapid repetitive motion to date, rapid repetitive motion shown where employee's assembly duties required her to attach a nut to a block at an average rate of one nut every fifteen seconds during the majority of her shift. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).

A physician's letter and office notes constituted sufficient evidence to support the Workers' Compensation Commission's finding that an employee's work aggravated his osteoarthritis where the letter stated that the employee's required use of his hands was “likely to aggravate osteoarthritis of the hands” and that the employee should avoid repetitive use of his hands and where the report stated that it seemed that the employee's repetitive motions had led to a large portion of his osteoarthritis and tendinitis. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998).

Employee's job involved rapid repetitive motion where the job involved motions that were repeated 115 to 120 times per day separated by periods of only 1.5 minutes. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998).

The standard for determining “rapid repetitive motion” is a two-pronged test: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. Malone v. Texarkana Pub. Sch., 333 Ark. 343, 969 S.W.2d 644 (1998).

The Workers' Compensation Commission erred by applying a definition of “rapid repetitive motion” that had been rejected and held to be too restrictive when it determined that, although the claimant's job involved the use of her hands in all of her duties, it did not require the exact or almost exact movement again and again for prolonged periods of time sufficient to constitute rapid, repetitive motion. Malone v. Texarkana Pub. Sch., 333 Ark. 343, 969 S.W.2d 644 (1998).

The claimant, who was a custodian in a public school, failed to establish an injury caused by rapid repetitive motion where the claimant performed several different tasks each day and her supervisor testified that her work was not rapid in nature. Malone v. Texarkana Pub. Sch., 333 Ark. 343, 969 S.W.2d 644 (1998).

An incisional hernia caused by gradual heavy lifting was not a compensable injury caused by rapid repetitive motion; although the motion which caused the injury was repetitive, it was not rapid. Jobe v. Wal-Mart Stores, Inc., 66 Ark. App. 114, 987 S.W.2d 764 (1999).

Evidence established that rapid repetitive motion caused the claimant's bilateral knee injuries where she spent a substantial amount of time making back and forth motions on her knees while stocking store shelves. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).

Epicondylitis, or “tennis elbow,” has not been designated as a specifically recognized injury under “rapid repetitive motion,” and, consequently, a claimant bears the burden of proving that rapid repetitive motion caused such condition. Freeman v. Con-Agra Frozen Foods, 27 S.W.3d 762 (Ark. Ct. App. 2000).

The claimant established that her bilateral carpal tunnel syndrome and bilateral epicondylitis, or “tennis elbow,” arose out of and in the course of her employment, which involved assembling frozen dinner trays on a production line, where (1) she testified that her duty on the production line was to place the correct portion of food into the frozen dinner tray, making certain that there was not too much nor too little food in each triangle portion of the tray, and that she was responsible for filling approximately 65 dinners per minute, and (2) a physician opined that her conditions were consistent with her job description. Freeman v. Con-Agra Frozen Foods, 27 S.W.3d 762 (Ark. Ct. App. 2000).

Evidence was sufficient to establish that the claimant's neck injury was caused by rapid repetitive movement where (1) over the course of a nine to ten hour shift, the claimant completed 316 units, each of which had six screws, and (2) the claimant testified that she had to stoop over and bend her head or neck a little for each screw inserted into every unit. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

The Workers' Compensation Commission erred in denying benefits for the claimant's carpal tunnel syndrome, notwithstanding that she first experienced shooting pains in her wrists while wiping up some spilled tea from a kitchen counter in her home and admitted that she did not initially report problems she had with her hands because she believed that pain was simply a “part of the job,” where (1) the claimant testified in detail about her job duties that required extensive use of her hands and wrists and also testified that she had no prior injury that could be related to her current problems and denied engaging in any outside activities that could have caused carpal tunnel syndrome, (2) the claimant submitted her medical records, which included the medical opinions of two of her treating physicians, (3) one physician stated in his letter that the claimant's injuries were overuse-type injuries consistent with her job duties, and (4) the second physician concurred with the first physician that the claimant's injuries were usage-related type injuries often associated with repetitive motions, but declined to state definitively whether the claimant's job, or some outside activities, were the cause of her injuries. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).

Employee, a volleyball coach and physical-education teacher, did not establish that she sustained a gradual-onset throat injury caused by rapid repetitive motion as the Workers' Compensation Commission improperly applied prior case law in finding the internal vibrations of the vocal cords to be tasks as opposed to the act of speech. Westside High Sch. v. Patterson, 79 Ark. App. 281, 86 S.W.3d 412 (2002).

Workers' compensation benefits were properly awarded to a claimant due to a cumulative trauma to her left knee as a rapid repetitive motion injury under this section where the claimant had to move constantly, had to climb ladders for 5 hours of an 8-hour shift, and had to move quickly in order to make quota. Substantial evidence supported the findings that the repetitive and rapidity elements were met. Gates Corp. v. Friend, 2015 Ark. App. 89 (2015).

Argument that the Workers' Compensation Commission erred as a matter of law in finding that a benefits claimant had sustained a cumulative trauma injury to her left knee and awarding benefits was rejected because the issue of whether an injury meets the rapid-repetitive-motion requirement is a question of fact. Gates Corp. v. Friend, 2015 Ark. App. 89 (2015).

Workers' Compensation Commission's decision that a highway employee's weed-eating activities did not equate to a rapid-repetitive movement for purposes of his workers' compensation claim was supported by substantial evidence; weed-eating was a “second duty” to his other tasks, it only occurred during mowing season, and the amount of time he spent actually weed-eating varied depending on where the mowing crews were working. Carlat v. Ark. Highway & Transp. Dep't, 2018 Ark. App. 157, 546 S.W.3d 514 (2018).

—Recurrence.

If an injury flares up a second time without an intervening cause and creates a second disability, it is a recurrence of the first compensable injury and the employer remains liable; a recurrence is not a new injury but simply another period of incapacitation resulting from the previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).

—Sexual Harassment.

This chapter does not exclude sexual harassment claims where the claimant sustains a compensable injury arising out of and in the course of the employment relationship. Phillips v. Arkansas State Hwy. & Transp. Dep't, 52 Ark. App. 170, 916 S.W.2d 128, 1996 Ark. App. LEXIS 116 (1996).

To determine whether an injury arises out of employment, the Commission should apply the same rule to sexual harassment cases that it applies in assault cases: an injury arises out of the employment if the risk is increased by the nature or setting of the work; whether sexual harassment is a risk to which an employee is exposed because of the nature of the work environment is a fact that should be decided on a case-by-case basis. Phillips v. Arkansas State Hwy. & Transp. Dep't, 52 Ark. App. 170, 916 S.W.2d 128, 1996 Ark. App. LEXIS 116 (1996).

—Specific Incident.

Employee was denied benefits for injury allegedly caused by a specific traumatic incident, where the medical evidence was silent as to the causal connection between his disability and a specific traumatic incident. Lay v. UPS, 58 Ark. App. 35, 944 S.W.2d 867 (1997).

The claimant's neck injury was not compensable on the basis that it was caused by a specific incident and was identifiable by time and place of occurrence where the claimant's own deposition testimony reflected that she did not know how she was injured, that she did not recall anything specific happening, and that she did not tell her treating physician that her pain was associated with any particular, specific incident. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

Employee failed to prove by a preponderance of the evidence that she sustained an injury to her left shoulder resulting from a specific incident where employer's medical department supervisor testified that she helped employee file the first report of injury and that employee described the injury to herself as something that gradually happened to her shoulder after shoveling ice the previous month; the court could not say that no reasonable, fair-minded person could have reached the conclusion arrived at by the Arkansas Workers' Compensation Commission. Dorris v. Townsends of Ark., Inc., 93 Ark. App. 208, 218 S.W.3d 351 (2005).

Finding that the employee failed to prove a compensable injury caused by a specific incident identifiable by time and place of occurrence was proper under subdivision (4)(A) of this section because his treating physicians reported no acute event but instead indicated that he developed an injury to his toe by working in work boots that were too narrow. The employee testified that he did not feel any soreness until he had been working his regular duties for a couple of hours. Pearson v. Worksource, 2011 Ark. App. 751, 387 S.W.3d 274 (2011), rehearing denied, Pearson v. Worksource & Wausau Ins. Co., — Ark. App. —, — S.W.3d —, 2012 Ark. App. LEXIS 32 (Ark. Ct. App. Jan. 11, 2012), vacated, 2012 Ark. 406, 424 S.W.3d 311 (2012).

Workers' Compensation Commission found the record devoid of credible evidence to support the worker's contention that a fracture was the result of a specific, work-related incident; the Commission did not believe the worker's testimony that he had injured his foot while working, and the appellate court was bound by that credibility determination. Yates v. Boar's Head Provisions Co., 2017 Ark. App. 133, 514 S.W.3d 514 (2017).

Claimant proved that he sustained a compensable left-knee injury because he testified he was escorting a prisoner down the stairs with his supervisor when he felt his knee pop, and he reported it to the supervisor; although he knew an incident report needed to be filled out, he explained that he did not as they were busy; the claimant did not report the injury until two days after going to the doctor when he returned for his shift as he knew there was no light-duty work; and the administrative law judge found that the claimant suffered a new knee injury as the claimant felt his left knee pop, he developed edema and a limp, and fluid had to be aspirated from his knee. Ark. Dep't of Corr. v. Clary, 2018 Ark. App. 51, 541 S.W.3d 486 (2018).

Substantial evidence supported the finding that the claimant suffered a compensable injury in the form of a brain injury and neuropathy by inhaling sulfuric acid fumes that had leached from the battery in his patrol car as there was no convincing argument or legal authority otherwise, the court had previously awarded benefits for such injuries, and the Workers' Compensation Commission has the authority to resolve conflicting evidence, including the medical evidence, and to accept or reject medical opinion. White Cty. Judge v. Menser, 2019 Ark. App. 523, 589 S.W.3d 384 (2019), review granted, 2020 Ark. LEXIS 42 (Jan. 23, 2020).

Workers' Compensation Commission did not err in awarding benefits to an employee arising out of a motor vehicle accident because the issue of whether the driver of the other vehicle was traveling 30 miles an hour at the time of the accident and rear-ended the employee at a stop light or instead the employee backed into the other driver was one of credibility and weight to be accorded to the evidence. Sears Roebuck & Co. v. Brown, 2020 Ark. App. 93 (2020).

—Work-Related.

Where the Commission reversed the decision of the ALJ and awarded no benefits pursuant to its finding that complainant failed to prove that his back condition was the result of any work-related incident, the court reversed the Commission's decision because their denial of compensability was not supported by any substantial evidence. Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), aff'd, 341 Ark. 527, 20 S.W.3d 280 (2000).

While the removal of gravel from a temoprary dump site by the employee may have advanced the employer's interests, at least indirectly, the removal of it for his own personal use was not inherently necessary to his job; it also was not necessary at the time and place of the occurrence for the employee to have been loading gravel at all. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004).

Going-and-coming rule precluded the employee's recovery as his accident occurred while he was simply traveling home; the Workers' Compensation Commission did not err in concluding that the employer provided the employee with transportation as a gratuity to the employee, rather than for a benefit to the employer. Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004).

Where a claimant suffers an unexplained injury at work, it is generally compensable; thus, employee who twisted his knee exiting the driver's compartment of a cement truck suffered a compensable injury. Crawford v. Single Source Transp., 87 Ark. App. 216, 189 S.W.3d 507 (2004).

Where employee of a medical center was headed off to lunch and slipped on a puddle of spilled coffee outside the elevator, the Arkansas Workers' Compensation Commission properly denied her claim for benefits because she was not performing employment services at the time of her injury. Robinson v. St. Vincent Infirmary Med. Ctr., 88 Ark. App. 168, 196 S.W.3d 508 (2004).

Employee is performing “employment services” when he is engaging in an activity that carries out an employer's purpose or advances the employer's interest; thus, where employee stepped off the elevator to retrieve her lunch and slipped in a puddle of coffee, the employee did not suffer a compensable injury because she was not performing employment services at the time of her injury. Robinson v. St. Vincent Infirmary Med. Ctr., 88 Ark. App. 168, 196 S.W.3d 508 (2004).

Accident that occurred while employee was going to get breakfast for all nurses in an intensive care unit was compensable under this section because the activity served to at least indirectly advance the interest of the employer by reducing the time that the unit was short-staffed. Ark. Methodist Hosp. v. Hampton, 90 Ark. App. 288, 205 S.W.3d 848 (2005).

Where employee fell while walking across a board over a ditch while returning from his break, he was entitled to benefits as he was performing employment services at the time of injury; employee had remained on the clock and was not able to leave the workplace during his break. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006).

Arkansas Workers' Compensation Commission's finding that employee's carpal-tunnel and cubital-tunnel injuries were compensable was proper given the employee's extensive testimony and testimony from her coworkers; further, employee's physician opined that employee's injuries were related to her repetitive duties as a grill cook. Cottage Cafe, Inc. v. Collette, 94 Ark. App. 72, 226 S.W.3d 27 (2006).

There was no substantial evidence to support the Arkansas Workers' Compensation Commission's conclusion that employee was not performing employment services when he was injured as employee was carrying out the employer's purpose and advancing its interest when the injury occurred. Richard Kimbell v. Ass'n of Rehab Indus. & Business Companion Property & Casualty, 366 Ark. 297, 235 S.W.3d 499 (2006).

Workers’ Compensation Commission did not err in finding that the claimant failed to prove a work-related injury to his back, as there were numerous inconsistencies in the evidence, including the claimant’s testimony that the injury occurred on one date and medical records showing that the injury occurred two days earlier, and testimony that the claimant told a co-worker he had hurt his back at home over the weekend. Ayers v. City of Ashdown, 2014 Ark. App. 270 (2014).

Workers' Compensation Commission properly denied an employee's claim for benefits because the employee failed to prove that she had sustained a compensable injury; the employee admitted that she was not carrying out any tasks related to her job activity when she went to the cafeteria to get something to eat and that she was not required to perform any job duties during her break, she had no medical condition that required her to have a mid-morning snack, and her job was not particularly physically demanding, such that a snack would be necessary to continue working until she was able to eat lunch. Fulbright v. St. Bernard's Med. Ctr. Risk Mgmt. Res., 2016 Ark. App. 417, 502 S.W.3d 540 (2016).

Workers' Compensation Commission did not err in finding that the injury was compensable where it acknowledged that the treating physician checked “no” in answering whether the disability arose from employment, but weighed that against the other medical evidence in the record. St. Jean Indus. v. Ezell, 2016 Ark. App. 516, 504 S.W.3d 679 (2016).

Workers' Compensation Commission did not err in finding a causal connection between the injury and the employment, given the claimant's testimony that a coolant had soaked his boots, socks, and feet, as well as the treating physician's notes that the claimant worked in coolant water that caused his boots to fall apart and recommending that the claimant get waterproof chemical-resistant boots. St. Jean Indus. v. Ezell, 2016 Ark. App. 516, 504 S.W.3d 679 (2016).

Workers' Compensation Commission did not err in concluding that the claimant's right shoulder injury was compensable because the claimant's failure to immediately report an injury or provide corroboration regarding the incident was not fatal to her claim as the administrative law judge and the Commission apparently found her to be a credible witness; while the emergency room records did not reflect that the claimant reported her injury being work-related, the claimant testified that she did inform hospital personnel of that fact; and the fact that the family physician's notes did not state that the injury was work-related was immaterial as those notes did not include any remarks regarding how the injury occurred. M.A. Mortenson Cos. v. Reed, 2019 Ark. App. 569, 589 S.W.3d 487 (2019).

Intoxicants.

Workers' Compensation Commission had a substantial basis for denying relief to an employee because the presence of marijuana metabolites in his urine sample created a rebuttable presumption, not overcome, that the injury was substantially occasioned by the use of illegal drugs. Waldrip v. Graco Corp., 101 Ark. App. 101, 270 S.W.3d 891 (2008), review denied, 2008 Ark. LEXIS 273 (Ark. Apr. 24, 2008).

Employee's refusal of his employer's request to take a hair-follicle test four days after he wrecked a large truck did not trigger the statutory presumption of intoxication found in subdivision (4)(B)(iv) (b) of this section. The police officer at the scene of the accident indicated that the employee appeared normal and no alcohol or drugs were observed. Curt Bean Transp., Inc. v. Hill, 2009 Ark. App. 760, 348 S.W.3d 56 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 1000 (Dec. 16, 2009), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 127 (Feb. 25, 2010).

Injured employee's negligence action against an employer was barred by subdivisions (4)(B)(iv) (a)-(d) of this section and the Worker's Compensation Commission's decision that the claim was not compensable because the employee tested positive for illegal drugs at the time of the accident. Hickey v. Gardisser, 2010 Ark. App. 464, 375 S.W.3d 733 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 591 (July 28, 2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 350 (Ark. Feb. 3, 2011).

Substantial evidence supported a decision by the Arkansas Workers' Compensation Commission that an employee rebutted the presumption in subdivision (4)(B)(iv) (b) of this section that a work-related injury was substantially occasioned by the employee's use of methadone because the Commission found credible: (1) the employee's testimony he ingested the methadone days before the accident; (2) the testimony by the employee's expert toxicologist that effects of the drug would have dissipated within 24 hours; (3) testimony by a co-worker and a supervisor that the employee did not seem impaired the day of the accident; and (4) testimony describing the accident as a highly unusual event and there was nothing the employee did to cause the accident or could have done to prevent its occurrence. Telling Indus. v. Petty, 2010 Ark. App. 602, 378 S.W.3d 167 (2010).

Finding that the employee failed to rebut the presumption that an injury he sustained was substantially occasioned by his use of marijuana was appropriate pursuant to subdivision (4)(B)(iv) (b) of this section because there was evidence that his injury occurred through no fault of the twist-and-tuck winder, contrary to his assertion. Townley v. Ga. Pac. Corp., 2012 Ark. App. 48, 388 S.W.3d 475 (2012).

Workers' compensation benefits claimant failed to rebut by a preponderance of the evidence the presumption under subdivision (4)(B)(iv) of this section that an accident involving the severance of his fingers was substantially occasioned by the use of marijuana. The evidence showed that the claimant was using a machine in a manner other than how he was instructed, he tested positive for marijuana metabolites, and he admitted that marijuana made him less attentive, made it harder for him to concentrate, and made it more difficult for him to react quickly. Hudgens v. Aid Temp. Servs., 2012 Ark. App. 471 (2012).

Workers' Compensation Commission did not err in affirming the award of benefits for a left-wrist injury sustained by claimant in a fall from a ladder. Because no test was performed on claimant in proximity to his work accident to establish the presence of drugs or alcohol in his system, the presumption of non-compensability under subdivision (4)(B)(iv) (b) of this section was not triggered; therefore, the burden did not shift to claimant to disprove that his work accident was substantially occasioned by the use of marijuana or alcohol. Weld Rite, Inc. v. Dungan, 2012 Ark. App. 526, 423 S.W.3d 613 (2012).

Workers' Compensation Commission properly denied an employee's claim for benefits based on his failure to rebut the statutory presumption that the accident was substantially occasioned by his use of illegal drugs; after the employee fell from a ladder, he was taken to a hospital where a urine sample tested positive for methamphetamine, there was no evidence that the employee ingested a medicine that contained legal methamphetamine, which might cause a false-positive result, and the employee did not prove that the angle iron behind the ladder caused his fall. Reed v. Turner Indus., 2015 Ark. App. 43, 454 S.W.3d 237 (2015).

Legislative Intent.

With respect to this section and § 11-9-527, which were unconstitutionally gender-based statutes, it was the legislature's intent to provide compensation for the death of an employee, and to make compensation available equally for a widow and widower would be more consistent with the legislative purpose than to exclude widows; thus, the employer could not successfully argue that deletion of the unconstitutional portions of these sections was not the proper way to equalize treatment for widows and widowers. Russell v. International Paper Co., 2 Ark. App. 355, 621 S.W.2d 867 (1981) (decision prior to 1981 amendment).

Major Cause.

For an accidental injury, it is not necessary that the claimant prove that the injury is the major cause of the disability or need for treatment. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000).

Substantial evidence did not support the conclusion that the claimant's motor vehicle accident was substantially occasioned by his use of alcohol where (1) both drivers had a blood alcohol content of more than twice the legal limit at the time of the accident, but (2) the other driver came completely over into the claimant's lane and struck his vehicle head-on, and (3) although a time stamped receipt in the claimant's vehicle showed that he had been speeding at some point, there was no evidence that he was speeding at the time of the accident or that he could have avoided the accident. Clark v. Sbarro, Inc., 67 Ark. App. 372, 1 S.W.3d 38 (1999).

Where worker began to experience pain and it was determined that her rapid repetitive motion injury was an aggravation of a preexisting condition, the appellate court held that the Workers' Compensation Commission was clearly wrong in its decision that the “major cause” requirement of subdivision (4)(E) of this section categorically could not be established by a showing that an asymptomatic preexisting condition became symptomatic and required treatment due to a work-related aggravation of that condition. Parker v. Atl. Research Corp. Ins. Co., 87 Ark. App. 145, 189 S.W.3d 449 (2004).

Arkansas Workers' Compensation Commission wrongfully denied employee permanent disability benefits as it erred in finding that an aggravation of a preexisting back condition was not capable of meeting the major-cause requirement of subdivision (4)(F)(ii) of this section.Pollard v. Meridian Aggregates, 88 Ark. App. 1, 193 S.W.3d 738 (2004).

Arkansas Workers' Compensation Commission erred under subdivisions (4)(F)(ii) (a) and (b) of this section in finding that an employee was not entitled to permanent partial disability benefits because his permanent impairment was caused solely by his degenerative condition rather than by a work accident, as his degenerative condition was asymptomatic prior to the accident and then symptomatic thereafter, such that the major-cause requirement was satisfied Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571 (2011).

In a workers' compensation case, a five-percent permanent-partial disability rating was supported by substantial evidence because there was reliance upon a medical report for objective findings to support the rating. The major cause of the rating was a compensable thoracic injury, which required surgical intervention. Walgreen Co. v. Goode, 2012 Ark. App. 196, 395 S.W.3d 398 (2012).

Worker had bilateral quadriceps tendon tears, a doctor assigned a disability rating of 35 and 32 percent to the right and left lower extremities respectively, and the Workers' Compensation Commission accepted the ratings and found that the worker had proven her compensable injuries to be the major cause of impairment; the Commission exercised its duty to assess the evidence to make a finding of permanent impairment, and substantial evidence supported this decision. Firestone Bldg. Prods. v. Hopson, 2013 Ark. App. 618, 430 S.W.3d 162 (2013).

Neck injury was not compensable because physician failed to state that the alleged work injury was the major cause for the need for treatment, and claimant testified that she could not figure out where else she would have sustained extensive wear and tear on her neck. Claimant first asserted this conclusion nearly two years after she left work without ever reporting a neck injury, and speculation and conjecture did not take the place of proof. Weaver v. Ark. Dep't of Corr., 2015 Ark. App. 346, 464 S.W.3d 133 (2015).

Workers' Compensation Commission's decision that the employee suffered a gradual-onset injury to his neck was supported by substantial evidence where the Commission relied on a physician's letter that clearly stated that the significant work-obligations that the employee performed most likely contributed to the underlying condition and the development of neck pain and radiculopathy, thereby showing that the injury was a major cause of the disability or need for medical treatment. Harrison v. Street & Performance, Inc., 2017 Ark. App. 611, 533 S.W.3d 648 (2017).

Workers' Compensation Commission's finding of a 37% impairment rating was affirmed; although a doctor opined that claimant's workplace injury was only 50% caused by the compensable injury, the claimant testified that he had remained quite physically active prior to the accident despite having polio, he had been able to move around with a right-leg brace and a crutch, but after the accident he was confined to a wheelchair or scooter. Ark. State Military Dep't v. Jackson, 2019 Ark. App. 92, 568 S.W.3d 811 (2019).

Medical Opinions.

The use of the word “probably” is sufficient to satisfy the requirement of subdivision (16)(B) that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

Neither the Arkansas Workers' Compensation Commission nor the court has the authority to extend or limit coverage by finding a constructive release when subdivision (16)(B) of this section specifically requires a medical opinion regarding impairment and compensability to be within a reasonable degree of medical certainty. Bingle v. Quality Inn, 96 Ark. App. 312, 241 S.W.3d 271 (2006).

Order from the Arkansas Workers' Compensation Commission that employee was entitled to temporary total disability only through August 14, 2001, was overturned where the Commission's substitution of a medical opinion with its own finding of a constructive release was arbitrary and contrary to subdivision (16)(B) of this section. Bingle v. Quality Inn, 96 Ark. App. 312, 241 S.W.3d 271 (2006).

Where a neurosurgeon wrote that the employee suffered a work injury when she fell from a ladder, his opinion regarding the cause of the employee's herniated discs was unequivocal; the appellate court concluded that his opinion was stated within a reasonable degree of medical certainty, as required by subdivision (16)(B) of this section. Wal-Mart Assocs. v. Davis, 98 Ark. App. 422, 256 S.W.3d 517 (2007).

Finding that an employee in a workers' compensation action was not entitled to medical treatment from a doctor in connection with the employee's compensable back injury was appropriate because the doctor's statement that the injuries “could” have been caused by her accident at work was insufficient under subdivision (16)(B) of this section. Hawley v. First Sec. Bancorp, 2011 Ark. App. 538, 385 S.W.3d 388 (2011).

For purposes of § 11-9-508(a), substantial evidence supported the determination that the treatment given by one doctor was causally related to and necessary for treating the claimant's compensable injury; a 2006 MRI showed a moderate herniation, but a 2010 MRI showed a large herniation, and although a medical center claimed that a physican's opinion concerning compensability was not stated within a reasonable degree of certainty under subdivision (16)(B) of this section, the court disagreed because the physician and doctor related the treatment and surgery to the compensable cervical-spine injury, the Workers' Compensation Commission credited their opinions, and the court left the weighing of the medical evidence to the Commission. St. Edward Mercy Med. Ctr. & Sisters of Mercy Health Sys. v. Chrisman, 2012 Ark. App. 475, 422 S.W.3d 171 (2012).

Medical Services.

Employee would be permitted treatment by out-of-state physician, where it would violate the employer's statutory duty to provide medical care if that care was denied simply because there was no medical service provider in Arkansas qualified and willing to provide the service. Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997), supp. op., Clark v. Director, Empl. Sec. Dep't, 58 Ark. App. 1, 944 S.W.2d 862.

Objective Findings.

Physician's diagnosis of carpal tunnel syndrome was not supported by “objective findings” as defined by subdivision (16)(A)(i) where the results of each of the tests performed by the physician were based on the patient's description of the sensations produced by various stimuli; such descriptions are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings. Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).

Doctor's direct observation of a 5 cm fibrous mass constituted an “objective finding” under subdivision (16). Daniel v. Firestone Bldg. Prods., 57 Ark. App. 123, 942 S.W.2d 277 (1997).

Claimant's inability to bend more than ninety degrees was not an “objective finding” under subdivision (16). Cox v. CFSI Temporary Emp., 57 Ark. App. 310, 944 S.W.2d 856 (1997).

Physician's remarks about an acidic solution such as wheel cleaner being able to cause irregular corneal astigmatism were stated within a reasonable degree of medical certainty as required by subdivision (16)(B). Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).

There was no objective medical evidence of the claimant's injury where the only arguably objective medical evidence of the injury was a notation at a clinic that there was a contusion of the lumbar spine, but reasonable minds could conclude that a contusion to such an internal structure could not be seen and therefore did not constitute objective medical evidence of an injury. Meister v. Safety Kleen, 65 Ark. App. 259, 987 S.W.2d 749 (1999), rev'd, Meister v. Kleen, 339 Ark. 91, 3 S.W.3d 320 (Ark. 1999).

The findings of muscle spasms by a physical therapist can constitute objective findings, notwithstanding that a physical therapist is unqualified to state a medical opinion to a reasonable degree of medical certainty; an objective finding is not synonymous with or otherwise based on medical opinion. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999), aff'd, 339 Ark. 142, 4 S.W.3d 124 (Ark. 1999).

Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).

Although muscle spasms are involuntary and constitute an objective finding, muscle tenderness is measured by a patient's subjective reaction to stimuli and does not constitute an objective finding. Kimbrell v. Arkansas Dep't of Health, 66 Ark. App. 245, 989 S.W.2d 570 (1999).

The claimant provided objective evidence of an internal contusion where a orthopedist conducted an x-ray examination about one month after the claimant's fall which corroborated the contusion that the claimant's treating physician originally diagnosed. Meister v. Kleen, 339 Ark. 91, 3 S.W.3d 320 (Ark. 1999).

Muscle spasms constitute objective findings. Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (Ark. 1999).

An objective finding is not synonymous with and need not be based on a medical opinion. Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (Ark. 1999).

A medical opinion addressing compensability of the claimant's carpal tunnel syndrome was given within a reasonable degree of medical certainty as required by subsection (16) of this section where the physician gave the opinion that if the work was repetitive (which it was), it likely could precipitate or aggravate the wrist condition. Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), rev'd, 341 Ark. 804, 20 S.W.3d 900 (2000).

A medical opinion addressing the compensability of the claimant's carpal tunnel syndrome did not satisfy the statutory requirement that such opinions be stated within a reasonable degree of medical certainty where the medical opinion stated only that the claimant's working conditions “could have” caused his symptoms and that a review of his working conditions would make it easier to determine if the carpal tunnel syndrome was related to the claimant's employment. Crudup v. Regal Ware Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).

A range-of-motion test performed on the claimant constituted objective findings under subdivision (16)(A)(i) where the test performed was not one in which the limb was actively moved by the claimant, but instead was a test in which the limb was moved passively by the examiner. Hayes v. Wal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d 751 (2000).

A finding of muscle tightness was not equivalent to a finding of muscle spasms and did not constitute an objective finding since there was no evidence to suggest that the findings of muscle tightness were actually muscle spasms or that the tightness was involuntary. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001).

While the pulmonary-function test results required the worker to give maximum effort, whether she did so could be shown by objective chemical data; thus, the test was an “objective finding” that supported the award of workers' compensation benefits. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

Though the worker could control her responses to the neuropsychological testing, as there was no evidence that she manipulated the testing, and there was other objective evidence that showed she suffered a compensable brain injury, the workers' compensation commission erred in denying her claim for additional benefits. Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001), overruled, Parson v. Ark. Methodist Hosp., — Ark. App. LEXIS —, — S.W.3d —, 2008 Ark. App. LEXIS 619 (Sept. 24, 2008).

Notation in the medical records of an employee who claimed to have injured his back while lifting a large mixing pot at work that the employee was suffering muscle spasms was sufficient to satisfy the requirement of subdivision (4)(D) that a workers' compensation claim based on accidental injury be supported by objective medical findings. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001).

Evidence that a worker suffered muscle spasms and that an MRI examination revealed an injury to a disk in her back as a result of being hit by a cart that was being pushed by a co-worker, was sufficient to satisfy the requirement that a worker's compensation claim be supported by objective medical findings, as that term was defined in subdivision (16) of this section. Wal-Mart Stores v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002).

Order awarding temporary total disability benefits to an employee who fell off a ladder and landed on a concrete floor was upheld because substantial evidence was presented that her compensable injury was established by medical evidence supported by “objective findings,” as required by subdivision (4)(D) of this section. Fred's, Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005).

Objective medical evidence, including pulmonary function test results and a doctor's opinion, showed that employee seeking workers' compensation had a 50% impairment due to silicosis and, for purposes of this section and § 11-9-704(c)(1)(B), the pulmonary-function test was an objective test despite the fact that the employee was at least partially able to control his breathing and may not have made a full effort during each breathing test. DeQueen Sand & Gravel Co. v. Cox, 95 Ark. App. 234, 236 S.W.3d 5 (2006).

Pursuant to this section, the employee failed to set forth two objective findings supporting her claim of a compensable injury where there was nothing in the medical records indicating why the employee was prescribed the medication at issue and the physician testified that her neurological examination was within the normal limits. Rodriguez v. M. McDaniel Co., 98 Ark. App. 138, 252 S.W.3d 146 (2007).

Workers' compensation benefits claimant failed to prove that he sustained a work-related organic brain injury because his neuropsychological testing and his own testimony, without more, did not constitute objective findings under subdivision (16)(A)(i) of this section and did not establish an organic brain injury under subdivision (4)(D) of this section. Rippe v. Delbert Hooten Logging, 100 Ark. App. 227, 266 S.W.3d 217 (2007).

Where the employee allegedly sustained a left-knee injury, the Arkansas Workers' Compensation Commission erred by finding that she had a compensable injury without making a finding about whether the employee's muscle “guarding” constituted an objective or subjective finding under subdivisions (4)(A)(i) and (4)(D) of this section. The Commission's opinion lacked a finding about whether the doctor concluded that the employee's muscle “guarding” was voluntary or involuntary. The Steak House v. Weigel, 101 Ark. App. 81, 270 S.W.3d 365 (2007).

Judgment of Arkansas Workers' Compensation Commission that an employee failed to prove that he suffered compensable knee and shoulder injuries was reversed because the contusion diagnosis with no conflicting testimony about the nature of the contusion satisfied the objective-nature findings requirement of subdivisions (4)(A)(i) and (4)(D) of this section. Ellis v. J.D. & Billy Hines Trucking, Inc., 104 Ark. App. 118, 289 S.W.3d 497 (2008).

Workers' compensation claimant failed to prove by a preponderance of the evidence that impairment ratings to the left hand and elbow were associated with a work-related injury because the claimant failed to cite any medical authority for such a connection, instead presenting only the claimant's own testimony and subjective responses to active range-of-motion testing, which did not amount to objective findings. Wilson v. Smurfit, 2009 Ark. App. 800, 373 S.W.3d 347 (2009).

Decision of the Arkansas Workers' Compensation Commission that an employee's neck injury was compensable was supported by substantial evidence because on the day of the incident, the employee sought treatment in an emergency room (ER), and the ER doctor noted twice that she was having muscle spasms in her neck on the day she was injured; those findings satisfied the objective-medical-evidence requirement of subdivision (4)(D) of this section. St. Vincent Health Servs. v. Bishop, 2010 Ark. App. 141 (2010).

Scar across the forehead of a workers' compensation claimant, who suffered a fall while tightening a nylon strap on a load of baled cardboard, was sufficient objective evidence of permanent physical injury under subdivision (16)(A) of this section where the medical expert supported his opinion that there was damage to the trigeminal nerve with the claimant's history, an examination, the scar, and the AMA Guides to the Evaluation of Permanent Impairment (4th Ed. 1993). Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561 (2011).

Arkansas Workers' Compensation Commission did not err in finding that an employee failed to prove that the employee was permanently and totally disabled after a 400-pound steel bar hit the employee on top of the head; while the employee's chief complaint was ongoing pain, under subdivision (16)(A)(ii)( a ) of this section, the Commission could not consider complaints of pain. Kelley v. Cooper Std. Auto., 2011 Ark. App. 665, 386 S.W.3d 570 (2011).

Arkansas Workers' Compensation Commission's opinion fell short of the minimum requirements and could not be reviewed in any meaningful way because the Commission failed to perform its duty in conducting a de novo review of the administrative law judge's opinion. The Commission merely attacked one finding the ALJ made. Serrano v. Westrim, Inc., 2011 Ark. App. 771, 387 S.W.3d 292 (2011).

Objective findings under subdivision (16)(A)(i) of this section, including medical reports, x-rays, and MRI results, provided substantial evidence to support the decision of the Arkansas Workers' Compensation Commission that appellant suffered from a degenerative condition in his low back - not an aggravation or new injury. A medical report documented appellant's prior history of back complaints; and x-rays taken the day after the incident demonstrated degenerative changes. Barber v. Pork Group, Inc., 2012 Ark. App. 138 (2012).

In a workers' compensation case, medical treatment provided for shortness of breath and chest pain was reasonable and necessary medical treatment for a work-related ankle injury; after the claimant began medication due to ongoing problems with his ankle, he sought treatment in the emergency room for a cardiac evaluation and diagnostic testing. Although objective medical evidence is necessary to establish the existence and extent of an injury, it is not essential to establish the causal relationship between the injury and a work-related accident. Centria, Inc. v. Bailey, 2015 Ark. App. 270 (2015).

X-ray showed soft tissue swelling in the worker's right ankle, which could be an objective medical finding, plus an MRI, which showed swelling and that a tendon was torn, was a diagnostic test that was objective and outside the workers's control; there was no prior medical history showing that the worker had been diagnosed with a torn tendon before the fall at work, and thus there was substantial medical evidence supported by objective findings. Lexicon Holding Co. v. Howard, 2015 Ark. App. 292, 462 S.W.3d 696 (2015).

“Objective findings” under this section are those findings which cannot come under the control of the patient, and all of the medical evidence related to the injury, other than the x-ray, were based on the worker's subjective complaints; thus, the Workers' Compensation Commission's decision finding that the worker failed to prove by a preponderance of the evidence a compensable back injury was supported by substantial evidence. Leming v. La-Z-Boy, Inc., 2015 Ark. App. 336, 463 S.W.3d 719 (2015).

Workers' Compensation Commission determined that the claimant was entitled to a 10% permanent partial-disability rating because the 10% rating was supported by objective medical findings, including the post-injury MRI, which confirmed abnormalities in the claimant's brain; the abnormalities were causally related to the October 31, 2011, compensable injury; the claimant proved that the compensable injury was the major cause of his 10% permanent anatomical-impairment rating; and the doctor, based upon patient history, examination, the MRI, and the American Medical Association's Guides to the Evaluation of Permanent Impairment, used his medical expertise to render an opinion concerning the claimant's permanent impairment. St. Francis County v. Watlington, 2015 Ark. App. 497, 470 S.W.3d 684 (2015).

Substantial evidence supported the findings and conclusion of the Workers' Compensation Commission that the worker suffered a 40% permanent impairment to his wrist; the Commission interpreted pin-prick test results to reflect the partial wrist denervation mentioned in the surgical report and concluded that the rating corresponded with the median nerve distribution, and implicit in the Commission's decision was a finding that the claimant credibly testified that the doctor had manipulated his hand during the examination. Emergency Ambulance Servs. v. Pritchard, 2016 Ark. App. 366, 498 S.W.3d 774 (2016).

Opinion of the Workers' Compensation Commission displayed a substantial basis for the denial of relief because there were no objective medical findings to support the employee's claim; the Commission was entitled to rely on the opinion of the doctor who reviewed x-rays and MRIs but reported no objective medical findings related to the employee's injuries or an aggravation of any preexisting condition. Bittle v. Wal-Mart Assocs., 2017 Ark. App. 639, 537 S.W.3d 753 (2017).

Substantial evidence supported the Workers' Compensation Commission's decision that a claimant was entitled to a 29% permanent impairment rating to the body as a whole for a brain injury because the severity of the claimant's skull fractures and the presence of pneumocephalus on the claimant's CT scan, coupled with the testimony of a clinical psychologist and a board-certified neurologist that the claimant suffered a brain injury, established that the claimant did, in fact, suffer a compensable injury to the brain. Multi-Craft Contrs., Inc. v. Yousey, 2018 Ark. 107, 542 S.W.3d 155 (2018).

Workers' Compensation Commission's finding that a claimant was not entitled to permanent impairment benefits for the claimant's nerve-injury claims was appropriate because the impairment rating established by a board-certified neurologist was based solely on the claimant's level of pain. Multi-Craft Contrs., Inc. v. Yousey, 2018 Ark. 107, 542 S.W.3d 155 (2018).

Workers' Compensation Commission did not err in awarding benefits to the claimant because objective medical findings supported the existence of an injury to the claimant's low back as she had significant soft-tissue swelling. Ark. Sec'y of State v. Young, 2018 Ark. App. 508, 559 S.W.3d 331 (2018).

Although compensable injuries must be established by medical evidence supported by objective findings, and complaints of pain are not objective medical findings as objective findings are those that cannot come under the voluntary control of the patient, a claimant who has sustained a compensable injury is not required to offer objective medical evidence to prove entitlement to additional benefits. Macsteel v. Hindmarsh, 2019 Ark. App. 458, 588 S.W.3d 53 (2019).

Workers' Compensation Commission did not arbitrarily disregard an orthopedic surgeon's medical opinion without a rational basis or based on an erroneous view of the law when it specifically considered the opinion, but noted that there was no evidence of the bus driver's left-shoulder injury before he fell in a gravel parking lot. Lonoke Exceptional Sch., Inc. v. Coffman, 2019 Ark. App. 80, 569 S.W.3d 378 (2019).

Because the Workers' Compensation Commission did not arbitrarily reject the orthopedic surgeon's medical opinion, the opinion was not considered in determining whether substantial evidence supported the decision that the bus driver sustained a compensable injury. Without the opinion, the bus driver's credible testimony and the post-accident medical evidence showed a left shoulder sprain, the subsequent MRI showed a tear in the left shoulder, and thus substantial evidence supported the decision that the driver sustained a compensable injury. Lonoke Exceptional Sch., Inc. v. Coffman, 2019 Ark. App. 80, 569 S.W.3d 378 (2019).

Workers' Compensation Commission did not err in finding that a diagnosis of “contusion” met the claimant's burden of proving a compensable back injury supported by objective medical findings; the alleged conflict about a contusion diagnosis was contained within the same emergency-room record, and the Commission gave little weight to a physician's subsequent opinion over one month after the incident that there was no objective evidence of an injury. TJX Cos. v. Lopez, 2019 Ark. App. 233, 574 S.W.3d 230 (2019).

Substantial evidence supported the Workers' Compensation Commission's decision that there were no objective findings of injuries to the claimant's lumbar, thoracic, and cervical-spine areas from the second incident, as a doctor found no evidence of spasms on the day of the incident or on a follow-up visit approximately one month later, and the notation in a physical-therapy note was made two months after the incident and did not indicate the location of the spasms. Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d 424 (2019).

There was a substantial basis for denying an employee's whole-hand/wrist and permanent impairment claims because (1) the administrative law judge (ALJ) found that the employee lacked credibility, (2) aside from an MRI report supporting the compensated thumb injury, the ALJ concluded that there were no objective medical findings of a hand injury attributable to the work injury and no impairment reports aside from an active range-of-motion evaluation, which was given little weight, and (3) swelling in the hand was slight and attributed to the effects of wearing an elastic hand brace. Evans v. Firestone Bldg. Prods., 2020 Ark. App. 80 (2020).

Performing Employment Services.

Workers' Compensation Commission properly awarded an employee benefits because the employee sustained a compensable injury when he slipped on the ice while walking from the main gate of a construction site to his employer's work trailer prior to clocking in. The employee was clearly advancing his employer's interests when he complied with the general contractor's rules regarding access to the job site by donning his personal protective equipment and swiping his access card at the front gate, and the employee was not paid until he clocked in each day. Cont'l Constr. Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762 (2015).

Physical Impairment.

The term “anatomical impairment” means the anatomical loss as reflected by the common usage of medical impairment ratings; wage-loss disability is something entirely different. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996).

Because an employee failed to prove a permanent impairment under § 11-9-704(c)(1)(B) and subdivision (16)(A)(i) of this section, and because the Workers' Compensation Commission could consider the conflicting medical evidence and give less weight to one opinion, there was substantial evidence to support the denial of the employee's claim for workers' compensation benefits. Pruitt v. Healthsouth Corp., 2011 Ark. App. 776 (2011).

Substantial Evidence.

Order denying an employee workers' compensation benefits was upheld where there was substantial evidence to support the determination that the employee was engaged in horseplay at the time of the injury, when the employee demonstrated some type of kick or aerobic exercise, which was not performance of employment services. The injury was not compensable under subdivision (4)(B)(i) of this section. Mize v. Res. Power, 99 Ark. App. 415, 261 S.W.3d 477 (2007).

Substantial evidence supported the Workers' Compensation Commission's denial of benefits based on an alleged work-related injury in September 2003 because the claimant failed to put forth any medical evidence supported by objective findings demonstrating that he suffered a compensable aggravation of his previous back injury. It was undisputed that the claimant suffered from chronic, severe back pain since at least 1997 and he admitted that he never fully recovered from that injury, and continued seeking treatment and medication without significant improvement; after the claimant's injury in September 2003, his treating physician did not indicate any sort of work-related accident or injury in his notes from an examination of the claimant two days after the incident and did not indicate any objective findings such as bruising, swelling, or spasms in the claimant's back. Long v. Wal-Mart Stores, 98 Ark. App. 70, 250 S.W.3d 263 (2007).

There was substantial evidence to support the findings of a twelve percent anatomical impairment, because the first doctor's opinion that the compensable injury was the major cause of the claimant's anatomical impairment was substantial evidence to support the finding to that effect, and the Arkansas Workers' Compensation Commission simply decided to believe the testimony of one doctor rather than the other and the appellate court was powerless to reverse the Commission. Gaither Appliance v. Stewart, 103 Ark. App. 276, 288 S.W.3d 690 (2008).

Arkansas Workers' Compensation Commission's award of benefits to an employee was affirmed because there was substantial evidence to show that the employee proved the gradual onset, work-relatedness, and major cause elements necessary to establish a compensable injury pursuant to subdivision (4) of this section. The evidence showed that the employee worked for an employer at the same task with approximately 1,000 shoes per day for 30 years. Addison Shoe Co. v. Moody