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).

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).

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).

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).

Research References

Ark. L. Rev.

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

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).

Research References

Ark. L. Rev.

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

Research References

Ark. L. Rev.

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

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).

Research References

Ark. L. Rev.

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

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.

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).

Research References

ALR.

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

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).

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).

Case Notes

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

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).

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).

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.

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).

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).

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.

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).

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.

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).

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).

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).

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.

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).

Research References

Ark. L. Rev.

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

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.

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).

Arbitration.

In employees' class action alleging violations of the Arkansas Minimum Wage Act, § 11-4-201 et seq., where the employer moved to compel arbitration, the provision of this section that exhaustion of administrative remedies is not required was inapplicable to the arbitration agreements the employer executed with its employees because administrative agencies, not private parties, establish administrative remedies; the employees' argument that the arbitration agreements violated subdivision (e)(3)(B) of this section also failed. BHC Pinnacle Pointe Hosp., LLC v. Nelson, 2020 Ark. 70, 594 S.W.3d 62 (2020).

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).

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.

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).

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).

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).

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.

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).

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).

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).

Case Notes

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

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).

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).

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).

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).

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).

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).

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).

Research References

ALR.

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

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).

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).

Case Notes

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

Case Notes

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

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).

Case Notes

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

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).

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).

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).

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.

Research References

ALR.

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

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

Case Notes

Cited: Central Coal & Coke Co. v. Barnes, 149 Ark. 533, 233 S.W. 683 (1921).

Case Notes

Cited: Bates Coal and Mining Co. v. Mannon, 205 Ark. 215, 168 S.W.2d 408 (1943).

Research References

Ark. L. Rev.

Administrative License Revocation in Arkansas, 14 Ark. L. Rev. 139.

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).

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).

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).

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).

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).

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).

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).

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).

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 §§ 11-9-508 — 11-9-517 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, 593 S.W.3d 512 (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).

Employee sustained a compensable injury to his neck when moving a desk, as there was a significant change in his condition following the work accident; his prior neck injury had not limited his activities following his military discharge, and the evidence showed a current herniated disc with spinal bleeding, indicative of an acute injury. Ark. Dep't of Health v. Lockhart, 2020 Ark. App. 166, 594 S.W.3d 924 (2020).

—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, 593 S.W.3d 44 (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, 594 S.W.3d 160 (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).

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, 594 S.W.3d 896 (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, 594 S.W.3d 139 (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, 2009 Ark. App. 797 (2009).

Judgment from the Arkansas Workers' Compensation Commission denying an employee's request for benefits related to a back injury based on the employee's failure to prove a causal connection under this section was affirmed because the Commission did not arbitrarily disregard evidence but rather deciphered the evidence without resort to speculation or conjecture. Ausler v. Hunt, 2009 Ark. App. 801 (2009).

Substantial evidence supported the Arkansas Workers' Compensation Commission's determination that an employee did not sustain a compensable injury under this section when the employee fell at work because the Commission had the authority to accept or reject medical opinions and its resolution of the medical evidence had the force and effect of a jury verdict. Osborne v. Booneville Human Dev. Ctr., 2010 Ark. App. 315 (2010).

Substantial evidence supported the determination by the Arkansas Workers' Compensation Commission that an employee's back injury was compensable as a new injury or as an aggravation of his previously asymptomatic degenerative condition pursuant to subdivision (4)(A)(i) of this section. Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571 (2011).

Substantial evidence supported the Workers' Compensation Commission's opinion that a claimant did not suffer a compensable injury where his owned signed statement and the testimony of two coworkers indicated that his back injury was not work related, the court deferred to the ALJ's finding that the claimant's testimony about the statement was not credible, the claimant had a history of back problems, and he could not point to a specific incident at work that prompted his injury. Sandeford v. UPS, 2014 Ark. App. 228 (2014).

Temporary Total Disability.

Where appellee employee sustained a compensable injury when a forklift struck him in his right hip and back area, substantial evidence supported the decision of the Arkansas Workers' Compensation Commission denying him temporary disability benefits under subdivision (12) of this section because the employee had a medical release to work for two years after he suffered his injury before he was terminated from his employment. Tyson Chicken, Inc. v. Witherspoon, 2012 Ark. App. 99 (2012).

Claimant was released to perform light-duty work and there was no evidence that she was totally incapable of earning wages; there was substantial evidence to support the decision that she was not entitled to temporary total disability benefits. Mullin v. Duckwall ALCO, 2016 Ark. App. 122, 484 S.W.3d 283 (2016).

Timeliness.

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).

Wages.

The clear wording of the statutory definition of wages makes no provision for combining wages from concurrent employments in determining benefits. Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

Section 11-9-518 concerns itself exclusively with the determination of average weekly wage, and the definition of the word wage is controlled and supplied by subdivision (8); it makes no provision for combining those wages with concurrent employment. Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

In determining an employee's wage rate for compensation benefits, an employer's contributions to an employee's fringe benefits of medical, life, and disability insurance should not be included in the term “wages.” Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990).

Subdivision (19) of this section embraces a much more inclusive concept of what constitutes compensation than does the National Council on Compensation Insurance guidelines. Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998).

Per diem payments to an employee to reimburse him for meals, lodging, and incidentals should have been included in the calculation of his average weekly wage under § 11-9-518(a)(1) because they fell within the definition of wages under subdivision (19) of this section. The per diem payments saved the employee from expending other funds to acquire those advantages, and the employee had the option to retaining any unused per diem funds, thereby increasing his income. Plane Techs v. Keno, 103 Ark. App. 121, 286 S.W.3d 774 (2008).

“Full wages” under § 11-9-807(b) refers to the money rate paid to recompense services rendered, and vacation pay is that sum received as an employee benefit when no services are rendered. Therefore, in a workers' compensation case, a benefits claimant was entitled to receive temporary-total disability benefits because he did not receive his full wages during his period of disability where he received vacation pay; vacation pay was the sum received as an employee benefit when no services were rendered. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881 (2012).

Widows and Widowers.

Where there was evidence that woman was not living with decedent nor dependent on him for support at the time of his death she did not meet the statutory requirements necessary to entitle her to receive a widow's benefits. Stephens & Stephens v. Logan, 260 Ark. 78, 538 S.W.2d 516 (1976).

Claimant, who was not living with the deceased nor dependent upon him at the time of his death, was entitled to no benefits under this chapter as a widow. 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 widow 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).

Arkansas Workers' Compensation Commission was required to reconsider whether or not an executrix, who married an employee after his injury but before his death, was entitled to widow's benefits because it misapplied § 11-9-527 in that it failed to reconcile the definition of widow under subdivision (20)(A) of this section with the requirements of § 11-9-527(c) and (h). The executrix was required to show that she was a widow and that she was dependent upon the employee at the time of the injury; marriage at the time of the injury was not required. Estate of Slaughter v. City of Hampton Mun. League WC Trust, 102 Ark. App. 373, 285 S.W.3d 669 (2008), review denied, Estate of Slaughter v. City of Hampton, — Ark. —, — S.W.3d —, 2008 Ark. LEXIS 786 (Dec. 19, 2008).

Cited: Wilson v. Border Queen Kitchen Cabinet Co., 221 Ark. 580, 254 S.W.2d 682 (Ark. 1953); Layne-Arkansas Co. v. Henderson, 221 Ark. 691, 255 S.W.2d 423 (1953); Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S.W.2d 497 (1958); Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W.2d 544 (1966); McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1969); Irby v. Davis, 311 F. Supp. 577 (E.D. Ark. 1970); Empire Life & Hosp. Ins. Co. v. Armorel Planting Co., 247 Ark. 994, 449 S.W.2d 200 (1970); International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974); Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Mohawk Tire & Rubber Co. v. Brider, 257 Ark. 587, 518 S.W.2d 499 (1975); Aluminum Co. of America v. McClendon, 259 Ark. 675, 535 S.W.2d 832 (1976); Mohawk Rubber Co. v. Thompson, 265 Ark. 16, 576 S.W.2d 216 (1979); Shippers Transp. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979); Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ct. App. 1979); Revere Copper & Brass, Inc. v. Birdsong, 267 Ark. 922, 593 S.W.2d 54 (1979); Alred v. Jackson Atl., Inc., 268 Ark. 695, 595 S.W.2d 249 (1980); Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ct. App. 1980); Hunter Mem. United Methodist Church v. Millirons, 268 Ark. 975, 597 S.W.2d 845 (Ct. App. 1980); Halstead Indus. v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ct. App. 1980); Pyles v. Triple F. Feeds of Texas, Inc., 270 Ark. 729, 606 S.W.2d 146 (Ct. App. 1980); Arkansas State Highway & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (Ark. 1981); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983); Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Arkansas La. Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); State Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985); State Treasurer, Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985); Masonite Corp. v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Marianna School Dist. v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985); Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); INA/Cigna Ins. Co. v. Simpson, 27 Ark. App. 222, 772 S.W.2d 353 (1989); County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156 (1989); Eureka Log Homes v. Mantonya, 28 Ark. App. 180, 772 S.W.2d 365 (1989); Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); Baldwin v. Club Prods. Co., 302 Ark. 404, 790 S.W.2d 166 (1990); Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990); Holiday Inn-West v. Coleman, 31 Ark. App. 224, 792 S.W.2d 345 (1990); King v. Consolidated Freightways Corp., 763 F. Supp. 1014 (W.D. Ark. 1991); Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991); Lively v. Libbey Mem. Physical Medical Ctr., 317 Ark. 5, 875 S.W.2d 507 (1994); Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 346 (1995); Couch v. First State Bank, 49 Ark. App. 102, 898 S.W.2d 57 (1995); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995); Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Cook v. Recovery Corp., 322 Ark. 707, 911 S.W.2d 581 (1995); Dugan v. Jerry Sweetster, Inc., 54 Ark. App. 401, 928 S.W.2d 341 (1996); Jefferson v. Munsey Prods., Inc., 55 Ark. App. 105, 930 S.W.2d 396 (1996); City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997); Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998); GE Railcar Repair Servs. Workers' Comp. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998); Williford v. City of Little Rock, 62 Ark. App. 198, 969 S.W.2d 687 (1998); Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998); Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998); Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278 (1998); Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112 (2000); Mayweather v. Mangum Constructing, Inc., 71 Ark. App. 322, 29 S.W.3d 783 (2000); Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001); Hislip v. Helena/West Helena Schs., 74 Ark. App. 395, 48 S.W.3d 566 (2001); Cromwell v. Univ. of Ark., 76 Ark. App. 5, 61 S.W.3d 864 (2001); Bell v. Tri-Lakes Servs., 76 Ark. App. 42, 61 S.W.3d 867 (2001); Cross v. Magnolia Hosp. Reciprocal Group of Am., 82 Ark. App. 406, 109 S.W.3d 145 (2003); Automated Conveyor Sys. v. Dooley, 360 Ark. 218, 200 S.W.3d 442 (2004); Dixon v. Salvation Army, 360 Ark. 309, 201 S.W.3d 386 (2005); Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005); Cloverleaf Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005); Rutherford v. Mid-Delta Cmty. Servs., 102 Ark. App. 317, 285 S.W.3d 248 (2008); Finley v. Farm Cat, Inc., 103 Ark. App. 292, 288 S.W.3d 685 (2008); Dick v. Conley Transp., 2009 Ark. App. 789, 358 S.W.3d 904 (2009); Vite v. Vite, 2010 Ark. App. 565, 377 S.W.3d 453 (2010); Ark. Game & Fish Comm'n v. Gerard, 2018 Ark. 97, 541 S.W.3d 422 (2018).

Research References

ALR.

Award of workers' compensation benefits to professional athletes. 112 A.L.R.5th 365.

Application of workers' compensation laws to illegal aliens. 121 A.L.R.5th 467.

Case Notes

Appeals.

The specific provision in the Workers' Compensation Act providing that a notice of appeal may be filed within 30 days of the “receipt” of the order or award of the commission controls rather than the provision in ARAP 4 that requires the notice of appeal to be filed within 30 days from the “entry” of the judgment appealed from. McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994).

The time for filing the notice of appeal extends to the next business day when the last day for filing falls on a Saturday or Sunday. McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994).

The record on appeal from the Workers' Compensation Commission must be filed in the Court of Appeals within 90 days from the filing of the notice of appeal, as is required in other civil actions. Tribble v. Heartland Express, 45 Ark. App. 124, 872 S.W.2d 86 (1994).

Burden of Proof.

A finding that an employee is subject to the provision of this chapter requires more than just the proof of the employer-employee-carrier relationship; under § 11-9-102(5)(A) (now § 11-9-102(4)), there must also be proof that the injuries arose “out of and in the course of employment.” Lively v. Libbey Mem. Physical Medical Ctr., 317 Ark. 5, 875 S.W.2d 507 (1994).

Presumption.

There is no prima facie presumption that a claim comes within the provisions of this chapter. Duke v. Pekin Wood Prods. Co., 223 Ark. 182, 264 S.W.2d 834 (1954).

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 § 11-9-102(5)(B)(iv) (now § 11-9-102(4)). 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).

Waiver.

Where employee, on her job application form, waived the right to sue clients of the employer for injuries covered by workers' compensation laws, she did not make a void agreement to absolve her employer of liability, but made a valid agreement relinquishing her right to bring additional claims for work-related injuries against employer's clients. Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998).

Cited: Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989).

Case Notes

Appeals.

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).

Constitutional Issues.

The commission is required to rule on constitutional questions that are properly before it in order to provide the appeals court with fact-findings sufficient to decide the constitutional issue. Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).

Cited: Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004).

Research References

ALR.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable. 101 A.L.R.5th 61.

Contractual waiver of exclusivity of workers' compensation remedy. 117 A.L.R.5th 441.

Postaccident conduct by employer, employer's insurer, or employer's employees in relation to workers' compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers' compensation statute. 120 A.L.R.5th 513.

Right to workers' compensation for injury suffered at worker's home where home is claimed as “work situs.” 4 A.L.R.6th 57.

Construction and Application of Exclusive Remedy Rule Under State Workers' Compensation Statutes with Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Requisites for, and Factors Affecting, Applicability and Who May Invoke Rule. 42 A.L.R.6th 545.

Construction and Application of Exclusive Remedy Rule under State Workers' Compensation Statute With Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Against Whom May Rule Be Invoked and Application of Rule to Particular Situations and Employees. 43 A.L.R.6th 375.

Exclusive Remedy Provision of State Workers' Compensation Statute as Applied to Injuries Sustained During or as the Result of Horseplay, Joking, Fooling, or the Like. 44 A.L.R.6th 545.

Ark. L. Rev.

Workmen's Compensation — Contribution and Indemnity — Employer's Liability to Third Party Tortfeasor, 8 Ark. L. Rev. 512.

Comparative Negligence, 9 Ark. L. Rev. 357.

Workmen's Compensation — Third Party's Right to Indemnification — Absence of Express Indemnity Agreement, 16 Ark. L. Rev. 315.

Workmen's Compensation — Common Law Tort Liability of Principal Contractor to Employees of Sub-Contractor, 17 Ark. L. Rev. 213.

Note, Wal-Mart Stores, Inc. v. Baysinger: Retaliatory Discharge in Arkansas Workers' Compensation Cases, 45 Ark. L. Rev. 939.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

Flavio Rios Guerrero v. OK Foods, Inc.: Advocating for a Broader Intentional-Tort Exception to the Workers' Compensation Exclusive-Remedy Doctrine, 61 Ark. L. Rev. 133.

U. Ark. Little Rock L.J.

Note: Wallis v. Mrs. Smith's Pie Co., 1 U. Ark. Little Rock L.J. 103.

Survey of Arkansas Law: Worker's Compensation, 4 U. Ark. Little Rock L.J. 255.

Notes, Workers' Compensation — Supervisory Employees Are Immune From Tort Actions, 8 U. Ark. Little Rock L.J. 523.

Lucy, Workers' Compensation Law: Act 797 of 1993 and the Definition of “Compensable Injury,” 20 U. Ark. Little Rock L.J. 265.

Annual Survey of Caselaw, Tort Law, 26 U. Ark. Little Rock L. Rev. 985.

Case Notes

Constitutionality.

This section is not unconstitutional nor was it unconstitutionally applied to bar claim of employer against insurer alleging fraudulent conduct. Seawright v. United States Fid. & Guar. Co., 275 Ark. 96, 627 S.W.2d 557 (1982).

Subsection (a) was unconstitutional, as amended in 1993, as it granted tort immunity to a prime contractor, even when there was no statutory employment relationship with the injured employee. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Circuit court did not have jurisdiction over a wrongful death claim filed by an estate due to the fact that the Workers' Compensation Commission had exclusive jurisdiction, pursuant to this statute, and jurisdiction in the circuit court was not proper based on a challenge to the constitutionality of the Workers' Compensation Law. Even though the Commission did not have the authority to declare a statute unconstitutional, such issues should have been first raised at the administrative law judge or Commission level. Central Flying Serv., Inc. v. Pulaski County Circuit Court, 2015 Ark. 49, 454 S.W.3d 716 (2015).

General Assembly validly exercised its constitutionally granted authority when crafting subsection (a) of this section to include “stockholders” and “principals” as “employers” for purposes of the exclusive remedy provision. Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613 (2020).

Workers' Compensation Commission's conclusion that the parent companies of the direct employer were statutory employers as principals and stockholders of the direct employer was supported by substantial evidence. Accordingly, subsection (a) of this section was constitutional as applied because the parent companies had an employment relationship with the deceased employee. Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613 (2020).

In General.

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).

This section does not allow a claimant to maintain a personal injury suit for damages when his employer, by disputing the claim, fails to secure worker's compensation payment for the claimant. Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994).

Purpose.

The purpose of workers' compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Applicability.

The exclusive remedy provided by this section applies to a worker injured by the active negligence of a non-supervisory co-employee. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996).

Administrator's wrongful death suit against decedent's employer and insurance carrier was properly dismissed on the grounds of the exclusive remedy provision of this section; administrator's argument that the claim did not sound in tort but on an indemnity contract between the employer and the city was without merit because the administrator was merely an incidental, not intended, third party beneficiary. Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Where Arkansas' workers' compensation law provided that an injured employee who did not receive the necessary benefits was allowed to file a workers' compensation claim or file a complaint in circuit court, the Arkansas rule of law was better than the Louisiana rule of law, which would have prevented the injured person's negligence suit against a non-employer corporation, thereby foreclosing the injured person's day in court; thus, the Arkansas rule applied despite the fact that the accident itself occurred in Louisiana. Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917 (2005), appeal dismissed, 2009 Ark. 89, 302 S.W.3d 33 (2009).

Section 16-55-202 is not an unconstitutional intrusion on the rule-making authority of the Supreme Court of Arkansas, it must be interpreted based on its plain terms, and it clearly allows juries to consider the fault of employers and other non-parties in tort suits, including products liability suit, without restriction and regardless of whether the employer or non-party could be directly joined in the suit. The fact that an employer may be protected from be sued under the Arkansas' Workers' Compensation Act, based on its payment of workers' compensation and medical benefits to an injured worker, does not preclude a jury from considering whether the employer is at fault or is partially at fault for the accident giving rise to the worker's injuries because a finding of fault pursuant to § 16-55-202 does not render the employer subject to any liability for its fault. Bohannon v. Johnson Food Equip., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 45273 (E.D. Ark. June 9, 2008).

Motion to strike the notice of intent to assert non-party fault, which was filed by defendants who were sued by an injured worker in a products liability suit, was denied. By it plain terms, § 16-55-202 allowed defendants to request that the jury to consider the fault of the worker's employer and a non-party manufacturer of a component used in the chicken processing machine that was the focus of the suit, and it did not matter that the employer could not be directly sued in the suit, based on the exclusivity provision of Arkansas' Workers' Compensation Act, or that the manufacturer had not been made a party in the suit or served under Ark. R. Civ. P. 4, as no liability would be imposed, even if the jury found the employer or the manufacturer to be at fault pursuant to § 16-55-202. Bohannon v. Johnson Food Equip., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 45273 (E.D. Ark. June 9, 2008).

Action by Legal Representative.

Administrator's argument that estate was entitled to recover for breach of implied contractual duty to supply a safe work place was contrary to plain meaning of this section. Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Action by Spouse.

Exclusive remedy provision did not apply to widow's claims of misrepresentation and extreme mental anguish; her alleged injuries were not the result of an aggravation of the initial, compensable injury suffered by her husband, and this chapter did not provide a remedy for her injuries. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

Because spouse's action for emotional distress was one manifestly premised on a nonphysical injury, and because her injury was not compensable and beyond the scope of coverage of this chapter, the claim was not barred by the exclusive-remedy provision of this chapter. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

Common-law Remedies for Retaliation.

By enacting § 16-118-107, the Arkansas General Assembly did not intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers' compensation law which it expressly annulled at § 11-9-107. Lambert v. LQ Mgmt., L.L.C., 2013 Ark. 114, 426 S.W.3d 437 (2013).

Contributory Negligence.

An employee's contributory negligence does not prevent application of a penalty against the employer under § 11-9-503 for violating safety provisions. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

Discrimination.

There is no remedy under this chapter for an employee who is terminated from his or her job on the basis of a disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of this chapter does not preclude an employee from bringing an action under the Arkansas Civil Rights Act, § 16-123-101 et seq., based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Dual Employment.

Benefits claimant was an employee of both a staffing agency and a company under the dual employment doctrine for purposes of the exclusive-remedy provision of this statute; both the claimant and the company operated on a belief that the claimant would have full-time employment after logging a certain amount of hours. The fact that the implied employment contract was instituted through a temporary employment agency did not negate the fact of the claimant's dual employments. Randolph v. Staffmark, 2015 Ark. App. 135, 456 S.W.3d 389 (2015).

Substantial evidence supported the Workers' Compensation Commission's decision that dual employment existed and that a company was a special employer immune from suit where there was a shared-services agreement between the company and a temporary-employment agency; the company had a workers' compensation policy in effect at the time of the employee's injury and was not required to prove that the employee was actually covered by the policy to be entitled to the exclusive-remedy provisions. Pineda v. Manpower Int'l, Inc., 2017 Ark. App. 350, 523 S.W.3d 384 (2017).

Election of Remedies.

Acceptance of settlement for all claims arising pursuant to this chapter barred a subsequent tort claim against the employer under the common law. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Where there was no final determination whether the Workers' Compensation Law applied to the injury in question, the court declined to hold that employee had made an election such that he was barred from any of the relief he had sought in the event it was ultimately determined that his injury was not job-related and thus not covered by the Workers' Compensation Law. Riverside Furn. Corp. v. Rogers, 295 Ark. 452, 749 S.W.2d 664 (1988).

An employee who files for workers' compensation may still bring a civil cause of action, for the public policy exception comprehends conduct by the employer which contravenes the statute, § 11-9-107, and the stated objectives of the Workers' Compensation Act. Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), superseded by statute as stated in, Pedigo v. P.A.M. Transp., Inc., 891 F. Supp. 482 (W.D. Ark. 1994), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Trotter v. Weyerhaeuser Corp., — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 42099 (W.D. Ark. May 18, 2009).

When an employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy provisions and proceed in a common-law tort action, i.e., the employee has the option to pursue his claim for damages either in tort or under this chapter; however, once the employee makes that election, the employee may not later avail himself of the remedy not chosen. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).

Where employee settled a claim with the employer before the Commission, and discharged employer's liability for any past or future injuries, the trial court had no jurisdiction to proceed on employee's later intentional tort claims in circuit court, since those claims were properly concluded before the Commission. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).

A teacher's claim against the school district which employed her for the intentional tort of outrage was barred by the doctrine of election of remedies where she had previously pursued worker's compensation benefits based on the same injuries. Gourley v. Crossett Pub. Sch., 333 Ark. 178, 968 S.W.2d 56 (1998).

Workers' claim for compensation benefits was barred under the election of remedies doctrine where it was clear that the worker actively initiated and participated in the proceedings in Illinois by signing papers sent to him by his Illinois counsel and agreeing to the filing of his claim in Illinois, and that he knowingly received benefits pursuant to this award. Elliot v. Maverick Transp., 87 Ark. App. 118, 189 S.W.3d 62 (2004).

To maintain a suit in tort contemplated by subsection (b) of this section, a plaintiff must prove negligence on the part of the defendant. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Subsection (b) of this section penalizes employers without subjecting them to strict liability. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Although an injured worker alleged that a healthcare company was a prime contractor for purposes of § 11-9-402(a), such a finding by the court would have afforded him no relief since he had elected to sue in tort under subsection (b) of this section, and § 11-9-402(a), which made a prime contractor liable for compensation to employees of subcontractors who failed to secure compensation, was a workers' compensation statute that governed claims filed with the Arkansas Workers' Compensation Commission. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Mere fact of a freight lessor's, a freight carrier's, and a healthcare company's noncompliance with § 11-9-404, in failing to secure the payment of workers' compensation, did not establish their negligence for purposes of subsection (b) of this section, because an injured truck driver, who sought damages for a work-related back injury, did not demonstrate that their failure to maintain insurance coverage caused his injury. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

In order to establish liability on the part of a freight lessor, a freight carrier, and a healthcare company under subsection (b) of this section, a truck driver, who injured his back while disconnecting a trailer from his truck, was required to demonstrate negligence on their part since, under the plain meaning of subsection (b), the no-fault theory of workers' compensation did not carry over to suits filed in tort. The statute did not state that suits filed in tort were to be based on a theory of strict liability, and under the rule of strict construction, no such intent could be inferred. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Employees.

As supervisory employees, defendants in a personal injury and wrongful death action arising out of an industrial accident are protected from personal liability by the same immunity that § 11-9-105 confers upon the employer itself, the remedies provided being exclusive. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Negligence action against an air-ambulance helicopter pilot brought by a flight nurse and an EMT was properly dismissed because the pilot was immune from suit under the statute; at the time of a helicopter accident, the pilot, as a co-employee, was performing the employer's duty to provide a safe work place for the nurse and EMT. Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723 (2013).

Employer.

As used in the first sentence of subsection (a) of this section, the phrase “acting in his or her capacity as an employer” modifies only “partner”, the antecedent immediately preceding it. Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613 (2020).

As used in subsection (a) of this section, the qualifying phrase “acting in his or her capacity as an employer” does not modify “principal, officer, director, or stockholder” in the first sentence. Instead, the statute directs courts to consider only whether a partner is acting in their capacity as an employer. Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613 (2020).

Parties' stipulations as to the corporate structure of the employer provided evidence supporting the conclusion that the parent companies were principals and stockholders of the employer, and thus the immunity provision of subsection (a) of this section applied to the parent companies. Moreover, plaintiff did not allege that the parent companies had a status so completely independent from, and unrelated to, their status as principals and stockholders that would place the claims outside the normal employment context. Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613 (2020).

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).

Exclusivity.

Workers' compensation laws held to provide exclusive remedy in the following cases: Young v. G.L. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477 (1942); Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1 (1946); Barth v. Liberty Mut. Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948); Kimpel v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S.W.2d 932 (1950) (previous decisions under prior law); Huffstettler v. Lion Oil Co., 110 F. Supp. 222 (W.D. Ark.), aff'd, 208 F.2d 549 (8th Cir. 1953); Brown v. W.H. Patterson Constr. Co., 235 Ark. 465, 361 S.W.2d 13 (1962); Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967); Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Johnson v. Houston Gen. Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976); Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979); Moss v. Southern Excavation, Inc., 271 Ark. 781, 611 S.W.2d 178 (1981); Woodell v. Brown & Root, Inc., 2 Ark. App. 106, 616 S.W.2d 781 (1981); Seawright v. United States Fid. & Guar. Co., 275 Ark. 96, 627 S.W.2d 557 (1982); Daniels v. Commercial Union Ins. Co., 5 Ark. App. 142, 633 S.W.2d 396 (1982); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983), aff'd, 728 F.2d 1129 (8th Cir. Ark. 1984).

For defendant company to defend negligence action on the ground that this chapter provided the exclusive remedy, it was required to prove that plaintiff was its employee and that it had secured payment as required by § 11-9-404; plaintiff was not required to prove that he was not company employee. French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981).

An employer who is covered under this chapter cannot be sued in tort. Daniels v. Commercial Union Ins. Co., 5 Ark. App. 142, 633 S.W.2d 396 (1982).

As supervisory employees, the defendants in a personal injury and wrongful death action arising out of an industrial accident were protected from personal liability by the same immunity that the statute confers upon the employer itself, the remedies provided by the statute being exclusive. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Where the employee was required to do the same work with the same exposure after he was injured the first time, the only remedies available to the employee were those pursuant to the Workers' Compensation Act, since the employer's actions were not of such magnitude as to constitute an intentional tort and thereby removed the employer from the protection of the act. White v. Apollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986).

Subject to a few narrow exceptions, an employer is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

Writ of prohibition by Supreme Court preventing trial court from proceeding with tort action brought by injured employee against employee's supervisor was proper where the actions of the supervisor, who was acting within the scope of his supervisory duties during the course of his employment, were neither willful nor intentional, and thus workers' compensation laws were exclusive remedy. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

The benefits payable pursuant to the Workers' Compensation Act, and the procedure set out in that act for obtaining those benefits, constitutes an exclusive remedy. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988); Smith v. Rockwood Ins. Co., 684 F. Supp. 607 (E.D. Ark. 1988).

One consequence flowing from the exclusive nature of the Workers' Compensation Act is that the remedy precludes an action at law, including an intentional tort arising out of the nonpayment of benefits. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988); Smith v. Rockwood Ins. Co., 684 F. Supp. 607 (E.D. Ark. 1988).

The exclusive language of the Workers' Compensation Act does not preclude an Arkansas court from recognizing legal obligations owed by employers to their employees when acting in distinctly different legal roles than that of employer. Estate of Blakely v. Asbestos Corp., 766 F. Supp. 721 (E.D. Ark. 1991).

This section is the exclusive remedy of an employee injured in the course of his employment and makes no exceptions for contract actions. Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991).

The exclusive remedy provision of this section does not bar an employee from being legally entitled to recover under § 23-89-209, the underinsured motorist statute, against a coemployee who was the owner or operator of the vehicle in which the employee was riding at the time of the injury. Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79, 924 S.W.2d 828 (1996).

Summary judgment in favor of company was improper because the determination of whether the company was a stockholder-employer within the meaning of subsection (a) of this section was exclusively with the Arkansas Workers' Compensation Commission. Stocks v. Affiliated Foods Southwest, Inc., 363 Ark. 235, 213 S.W.3d 3 (2005).

Appellate court affirmed summary judgment in favor of employer after employee lost his arm during a work-related accident because the exclusivity provisions of of this section applied; the intentional-tort exception did not apply. Guerrero v. Ok Foods, Inc., 94 Ark. App. 333, 230 S.W.3d 296 (2006).

Grant of summary judgment in favor of company and its owner in individual's product liability action against the company for injuries she sustained while working on a production line for the company was reversed as the Arkansas Workers' Compensation Commission had exclusive jurisdiction to resolve the matter. Moses v. Hanna's Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006).

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).

Co-employees' appeal of an order dismissing their action against a pilot to recover damages for injuries they sustained from a medical-helicopter crash was dismissed because the circuit court lacked jurisdiction to determine whether the co-employees' injuries were covered under Workers' Compensation Act, and although the co-employees were arguing that the pilot was a third person who did not enjoy immunity under the Act, the Workers' Compensation Commission had exclusive original jurisdiction to determine that issue; when a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Act, the Commission must first decide the issue. Miller v. Enders, 2010 Ark. 92 (2010).

Substantial evidence supported the Arkansas Workers' Compensation Commission's finding that a pilot was an employer of a decedent for purposes of this section as: (1) the parties stipulated that the pilot was president of the decedent's employer, a member of its board of directors, a major stockholder, and its sales manager; (2) the pilot took an active role in the management and personnel decisions of the company, and was the decedent's sales supervisor; and (3) the company was family-owned and operated. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64 (2010).

Arkansas Workers' Compensation Act, § 11-9-101 et seq., including the exclusive-remedy provision of subsection (a) of this section, 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).

This section of the Work Near High Voltage Lines Act (Act) had priority over the exclusive remedy provisions of Workers' Compensation Law. 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).

Circuit court properly dismissed an estate's wrongful-death and survival action against a decedent's employer on the ground that the claims fell within the exclusive-remedy provision of the Workers' Compensation Law because the claims were within the coverage formula of the law, even though the decedent was ultimately denied recovery due to his asbestos claim being time-barred under the law. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Where the deceased employee had retired from his employment in 1995 but was not diagnosed with mesothelioma until 2012 and thus his workers' compensation claim was barred by § 11-9-702(a)(2)(B), his estate's civil action against the employer for wrongful death also failed; because the Workers' Compensation Law covered occupational diseases and asbestos-related claims, the exclusive-remedy provision applied to bar the civil action. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Statute of repose creates a substantive right to be free from liability after a legislatively determined period of time, and § 11-9-702(a)(2)(B) represents a policy-driven, legislative judgment to shield an employer from claims that arise three years after the last injurious exposure; coupled with the exclusive-remedy provision, it was not the intent to absolve an employer of liability after a period of time only to subject the employer to liability in tort after that period. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Administrative law judge's finding that the exception to the exclusivity doctrine did not apply was affirmed where, by a plain reading of subdivision (b)(1) of this section, the employer had secured payment of compensation as required by the Workers' Compensation Law by having a workers' compensation insurance policy in effect. Unless the workers' compensation insurance policy is void ab initio, versus merely voidable, then this coverage is in existence for the protection of an injured employee. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Wording of this section has been interpreted and applied to mean that the employer must prove insurance coverage, not necessarily that an individual employee is in fact covered or in fact paid. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

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).

When the injured construction worker's complaint in circuit court alleged that the employer failed to provide workers' compensation and the employer failed to appear, the circuit court erred in concluding that it had subject-matter jurisdiction over the worker's complaint; instead, the Workers' Compensation Commission had exclusive, original jurisdiction to determine the facts that established subject-matter jurisdiction. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

Even though no answer was filed, the allegation in the injured worker's complaint that the employer “failed to provide workers' compensation benefits for his employees” did not establish as a matter of law that he failed to “secure the payment of compensation” under subsection (b) of this section and § 11-9-404; the allegation failed to address whether the employer had a policy of workers' compensation insurance in effect at the time of the employee's injury. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

When the injured construction worker's complaint in circuit court alleged that the employer failed to provide workers' compensation and the employer failed to appear or file an answer, the employer did not waive the affirmative defense of exclusivity under the Workers' Compensation Law; a challenge to subject-matter jurisdiction cannot be waived. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

Foreign Awards.

Complete double recovery under the workers' compensation acts of two states is not permitted on the strength of the discredited analogy of recovering on two private contracts of accident insurance. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961).

Employee receiving salary from employer in Arkansas and another state entitled to weekly payments for loss of salary in both states but not entitled to two awards for hospital and medical expenses. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961).

Payments of maximum benefits under the compensation law of one state does not bar an employee from asserting a subsequent claim under the law of a sister state unless the law of the first state so prohibits, but there can be no double recovery, only the difference by which the second award is greater than the first may be recovered. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975).

Proceedings before the Arkansas 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).

Immunity.

Insurer and safety consultant were not immune under the exclusive remedy provision of this section because they were “third parties” as defined by § 11-9-410. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Immunity under this section has been extended only in two instances: (1) to the employer's workers' compensation carrier; and (2) to co-employees who were performing the employer's duty to provide a safe work place at the time of the injury. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Appellate court granted individual's writ of prohibition asserting that respondent Pulaski County Circuit Court was without jurisdiction to proceed in a case where individual alleged that he enjoyed immunity from suit as an employer under the Arkansas Workers' Compensation Act. McCarthy v. Pulaski County Circuit Court, 366 Ark. 316, 235 S.W.3d 497 (2006).

Civil Justice Reform Act, § 16-55-201 et seq., can not be interpreted to permit a jury to apportion fault in a tort suit to an immune non-party employer because doing so would render the statute unconstitutional. Such an interpretation would violate the employer's fundamental constitutional rights because subsection (a) of this section, the exclusivity provision of the Arkansas Workers' Compensation Act, § 11-9-101 et seq., deprives courts of subject matter jurisdiction over employers, thereby protecting employers from compulsory process, and it also provides immunity to employers with regard to claims arising from a covered worker's employment-related injuries. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

While a products liability defendant could issue a non-party notice under § 16-55-202(b)(2) with regard to a non-party equipment manufacturer, it could not issue a § 16-55-202(b)(2) apportionment of damages notice with regard to an injured worker's employer and co-employee: (1) the purpose of the notice under § 16-55-202 was to allow an apportionment of liability with regard to the injured worker's damages; (2) a § 16-55-202 notice could only be used with regard to an individual or entity that could be made a party to the suit by way of cross or third party claims; and (3) defendant could not file a § 16-55-202 notice against the employer or the co-employee because they were statutorily immune pursuant to subsection (a) of this section, the exclusive remedies provision of the Workers' Compensation Act, § 11-9-101 et seq. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Section 16-55-202 should be interpreted as being compatible with § 16-64-122(a), which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13 and 14, but excludes non-parties who are otherwise immune from suit. Employers have immunity under subsection (a) of this section, the exclusive remedies provision of the Workers' Compensation Act, § 11-9-101 et seq., with regard to claims arising from employment-related injuries sustained by covered workers. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Arkansas Workers' Compensation Commission erred in concluding that it had jurisdiction over an employee's tort claims against a corporation and its owner, and in deciding that the corporation and owner were immune under subsection (a) of this section because there was no employment relationship between the employee and the corporation and owner. Johnson v. Ark. Steel Erectors, 2009 Ark. App. 755, 350 S.W.3d 801 (2009).

In employee's products liability action against the manufacturer of the product that injured him while he was working, the circuit court properly precluded the manufacturer's attempt to allocate fault to the nonparty employer in its amended answer; because the employer was clothed with immunity from liability in tort under the exclusive-remedy provision of the workers' compensation statutes, the employer could not have joint or several “liability” in tort and therefore did not meet the definition of “joint tortfeasor” in the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., or fall within the confines of that act. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

The Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., does not allow for the apportionment of fault to an immune nonparty employer. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

The language of § 16-55-201 is clear; it speaks in terms of the allocation of fault among the “defendants” to the action but is silent as to the allocation of nonparty fault. Instead, the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., addresses the allocation of nonparty fault. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

Indemnity.

Utility company was entitled to sue contractor on indemnity agreement by virtue of judgment taken against utility company by employee of contractor for injuries sustained even though it had not made contractor a party to damage suit by employee, since liability of contractor to employee was limited to payment of compensation. C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953).

An employer who has paid Workers' Compensation benefits to an employee must indemnify a third person held liable for the employee's injury where, as between the third person and the employer, the injury was the fault of the employer. Fidelity & Cas. Co. v. J.A. Jones Constr. Co., 200 F. Supp. 264 (E.D. Ark. 1961), aff'd, 325 F.2d 605 (8th Cir. Ark. 1963).

Architects' insurer could not obtain indemnity from employer of workmen for damage judgments paid to workmen for injuries, since under this section the workmen would have had no right of tort action against employer. Fidelity & Casualty Co. v. J. A. Jones Constr. Co., 325 F.2d 605 (8th Cir. Ark. 1963).

Where Workers' Compensation insurance company paid benefits and sought subrogation claim against liability carrier, liability carrier was not entitled to assert a claim against employer on the ground that the employer was negligent or assert a claim for contribution or indemnity. Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971).

Cross-complaint against employer should not have been dismissed on ground that remedy was limited by this section where it stated a cause of action for implied indemnity. Oaklawn Jockey Club, Inc. v. Pickens-Bond Constr. Co., 251 Ark. 1100, 477 S.W.2d 477 (1972).

In absence of a contract for indemnity running in favor of the third party, a negligent third party tortfeasor is not entitled to either indemnity or contribution from a negligent employer where their concurrent negligence has produced the injury or death of the employee. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

A third party will have indemnity from a negligent employer where the liability that has been imposed upon the third party is purely vicarious and without fault on his part. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Evidence was sufficient to find an implied promise that the employer would indemnify third party for any damages he is made to pay as a result of the employer's negligence. Smith v. Paragould Light & Water Comm'n, 303 Ark. 109, 793 S.W.2d 341 (1990).

There exists an exception to the exclusivity of the workers' compensation remedy when there is a contract or special relation capable of carrying with it an implied obligation to indemnify running from the employer to a third party; however, the exception does not extend to a fully executed sales contract, in which implied duties or warranties do not run from the purchaser (employer) to manufacturer, but from the manufacturer to the purchaser. To find that when a purchaser buys a product, he makes an implied contract with the manufacturer to use that product in such a way as not to bring liability upon the manufacturer would be stretching the concept of contract out of all relation to reality. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992).

The mere acknowledgement of the employer's duty to maintain and operate a machine in a safe manner and to comply with Occupational Safety and Health Act regulations does not express an agreement of indemnity running to the manufacturer so as to constitute an exception to the exclusivity of the Workers' Compensation Law. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992).

When a telephone company worker was injured in an accident involving a delivery driver, the telephone company was not liable to indemnify the delivery company under an implied indemnity exception to the exclusivity of the Workers' Compensation Law, because there was no special relationship between the telephone company and the delivery company. The relevant statutes and safety regulations that the telephone company was said to have violated merely created a duty of safety to the public and the telephone company's employees. R&L Carriers Shared Servs., LLC v. Markley, 2017 Ark. App. 240, 520 S.W.3d 268 (2017).

Insurance Carrier.

Workers' compensation insurance carrier has same immunity from suit by an injured employee as is provided employer. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987); Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Intent.

Where employer willfully assaulted employee, the fact that employee might have recovered under this chapter did not bar employee's action for damages. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).

In order to avoid the bar of this section, complaint must allege intentional or deliberate act by employer with a desire to bring about the consequences of the act and not willful and wanton conduct by negligent direction to the employee to use a device known by the employer to be defective or failure to warn the employee of an unsafe condition of which the employer was aware. Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).

If an employer commits acts with an actual, specific, and deliberate intent to injure the employee, the employee may pursue a common-law action in tort. Phifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983), aff'd, 728 F.2d 1129 (8th Cir. Ark. 1984); Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Injured employees did not allege the type of intent necessary to trigger the exception to the exclusivity provision of this section. Pyle v. Dow Chemical Co., 728 F.2d 1129 (8th Cir. Ark. 1984).

Whenever an employee is injured by the willful and malicious acts of his employer he may treat the acts of the employer as a breach of the employer-employee relationship and seek full damages in a common-law action; however, he must elect one remedy or the other. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Failure to warn of dangers or failure to provide safe conditions, deliberately placing an employee in a dangerous position and willfully violating governmental regulations does not bring the cause of action within the ambit of an intentional tort. That type of activity by an employer, even where flagrant, does not constitute an intentional tort for purposes of the exclusivity provision of this chapter. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985).

While it is true that the intentional infliction of an injury upon an employee by an employer is an exception to the exclusive remedy provision of this chapter, that exception is not created by the bare allegation that the employee's injury was the result of willful and wanton conduct by the employer; in order to escape the application of subsection (a), the complaint must allege a deliberate act by the employer with a desire to bring about the consequences of the act. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993).

Even if employer's behavior of exposing employee to asbestos fibers was intentional, it was not enough to escape the exclusivity provision in subsection (a). Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).

Jurisdiction.

Federal District court did not have jurisdiction of diversity action for damages by employee against employer, a self-insurer under this chapter based on injuries sustained in course of employment, since remedy under this chapter was exclusive. Shultz v. Lion Oil Co., 106 F. Supp. 119 (W.D. Ark. 1952), appeal dismissed, 202 F.2d 752 (8th Cir. Ark. 1953).

Where the reformation action under this chapter was primarily an action for the reformation of an insurance policy, no action before the Workers' Compensation Commission could be maintained until the reformation was attained; deceased's administratrix was the proper party to bring the action for reformation, and the chancery court was the proper forum. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961).

Any claim that employee has against employer, employer's Workers' Compensation insurance carrier, or agent of carrier must be determined by a proceeding before the Workers' Compensation Commission. Ragsdale v. Watson, 201 F. Supp. 495 (W.D. Ark. 1962).

Workers' Compensation Commission did not have exclusive jurisdiction where decedent was alleged to have been an independent contractor. Co-Ark. Const. Co. v. Amsler, 234 Ark. 200, 352 S.W.2d 74 (1961).

The first jurisdictional fact that had to be established was that the claimant or decedent was in fact and in law an employee of the person against whom the claim was 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 courts, like state courts, have no subject-matter jurisdiction in cases in which exclusive jurisdiction is vested in the Workers' Compensation Commission. Phifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980).

The Workers' Compensation Commission has jurisdiction to determine questions concerning an employer's insurance policy, including the extent of coverage, when they are ancillary to a determination of the claimant's rights. In resolving questions concerning the extent of coverage, the commission has authority to pass upon issues involving fraud in procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of injury, and construction of extent of coverage. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988).

The contention by a workers' compensation insurance carrier that an employee was not acting within the course and scope of employment when his injury occurred was one that was required to be made before the Workers' Compensation Commission because of the exclusive remedy provisions of this section. Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998).

The exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under this chapter, and the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (Ark. 1998).

Circuit court erred by granting summary judgment in a negligence case against a contractor based on lack of supervision and control because the circuit court did not have jurisdiction to determine if the Arkansas Workers' Compensation Act applied to the case; evidence regarding the relationship between two companies was insufficient to show that the Act did not apply as a matter of law. Merez v. Squire Court Ltd. P'ship., 353 Ark. 174, 114 S.W.3d 184 (2003).

Circuit court lacked jurisdiction to determine whether employees' alleged asbestos exposure injuries were covered under the Workers' Compensation Act and whether the claims against the employer were barred by the exclusive remedy provision of this section; exclusive jurisdiction of the matter was with the Workers' Compensation Commission because the facts presented were not so one-sided so as to demonstrate that the Act did not apply as a matter of law. Carter v. Georgia-Pacific Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006).

Filing of a workers' compensation claim did not toll the statute of limitations on a wrongful death suit; the Workers' Compensation Commission's primary jurisdiction to determine workers' compensation coverage did not prevent the tort action from being filed while the workers' compensation claim was pending. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Company was entitled to a writ of prohibition, because the lung disease and silicosis claim was covered by the Workers' Compensation Law, and the circuit court lacked jurisdiction to determine whether the claimant's alleged disease from his exposure at home was covered under the Law; the time of disablement was within three years of his last injurious exposure, and the claimant failed to file his claim within the one-year limitation period. Porocel Corp. v. Circuit Court of Saline County, 2013 Ark. 172 (2013).

Workers' Compensation Commission had exclusive, original jurisdiction to determine the applicability of workers' compensation laws to an out-of-state employee's tort claim against a co-employee where the employee had sought relief through the Commission, did not prevail, and then asserted that Arkansas lacked jurisdiction. Curtis v. Lemna, 2014 Ark. 377 (2014).

Employer's petition for writ of prohibition was granted because the Workers' Compensation Commission, not the circuit court, had exclusive jurisdiction to decide questions of fact regarding the applicability of the Workers' Compensation Law to the employee's claims. The employee's claims of negligent hiring and retention were claims of negligence, not intentional tort; the question whether the alleged sexual assault arose out of the employment was a factual inquiry; the causal relationship between the alleged physical and mental injuries raised issues of fact relevant to § 11-9-113; and the facts as presented in the complaint could not be determined to fall outside the Workers' Compensation Law as a matter of law. Truman Arnold Cos. v. Miller County Circuit Court, 2017 Ark. 94, 513 S.W.3d 838 (2017).

Prime Contractor.

The term “prime contractor” in subsection (a) presupposes work to be done for a third party. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

By amending this section in 1993, the General Assembly clearly intended to extend tort immunity to a prime contractor regardless of whether the subcontractor had paid workers' compensation benefits to its injured employee. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

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 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).

Special Employer.

Nothing in this chapter reflects that its exclusivity provision is not applicable to a “special employer,” since a special employer might well be liable for worker's compensation claims if the employee has made a contract for hire, express or implied, with the special employer, the work being done is essentially that of the special employer, and the special employer has the right to control the details of the work. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

A special employer falls within the exclusivity provision of this chapter, and neither a negligence nor contract action can be filed against special employer by claimant or insurance carrier for general employer as a subrogee because the exclusivity provision makes no exceptions for contract actions. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

Subrogation.

A workers' compensation insurance carrier could not, as subrogee of an injured employee, sue the sole owner and officer of the employer as a third person for injuries sustained by the employee in the crash of an airplane piloted by the owner/officer. Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998).

Summary Judgment.

Where request for summary judgment, with its supporting affidavit, failed to show that plaintiffs had remedy under this chapter, summary judgment in a suit for wrongful death was improper. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966).

Trial court erred in granting a potential employer's motion for summary judgment in a negligence action on the grounds that it did not have jurisdiction to determine if the claim was covered by the provisions of the Arkansas Workers' Compensation Act where the evidence failed to clearly show which employer an employee was working for on the date of the accident. Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003).

Supervisory Employees.

Since an employer is immune from a cause of action based on the negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986).

Liability on the basis of a willful and malicious act by an employer's supervisor will not render the employer liable to the employee in tort. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

Termination of Employment.

Where an employee has alleged two separate injuries, one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her physical disability as a result of the injury, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by the Arkansas Civil rights Act, § 16-123-101 et seq.Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Third-Party Tortfeasors.

Although under this section employer cannot rely on claims of negligence on part of fellow employee, assumption of risk or contributory negligence, the third party tort feasor is not deprived of the common-law defenses. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971).

Where defendant supervisor was part-owner of employer corporation, defendants in a wrongful death action could not obtain contribution from him as third party defendant because he, rather than the corporation, was regarded as the employer for the purpose of the exclusive remedy clause of this section. Jack Morgan Constr. Co. v. Larkan, 254 Ark. 838, 496 S.W.2d 431 (1973).

A working partner does not become a fellow employee, subject to third party liability pursuant to § 11-9-410, because of active involvement in the operations of the business. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993).

Where a third party tort action was filed against a company based on the allegation that claimant was a special employee of the company, in granting a writ of prohibition, the Court implicitly held that the special employee issue was to be decided by the Arkansas Workers' Compensation Commission as it had exclusive, original jurisdiction to determine the applicability of the Arkansas Workers' Compensation Act. Nucor Corp. v. Rhine, 366 Ark. 550, 237 S.W.3d 52 (2006).

—Co-Workers.

This chapter does not prevent an employee, or his personal representative, from maintaining an action for negligence of a fellow employee. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).

Exclusive jurisdiction to entertain an employee's claim against employer for injuries caused while working as his employee rests in the Workers' Compensation Commission; no exception is made when the injury is caused by a fellow employee. Campbell v. Waggoner, 235 Ark. 374, 360 S.W.2d 124 (1962).

Before an action for damages may be sustained against an employer for the intentional actions of fellow employees, there must be allegations of willful and intentional acts by the employer or it must be alleged that he directed, authorized, or commanded his other employees to do the wrongful acts and the mere fact that an employer's supervisory employee injures another employee by inflicting an intentional tort is not cause to allow such an action. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

In a case regarding a third party's liability (co-employee) for the employee's injury at work, because the co-employee was responsible for transporting the employee to and from a work site, he was involved in the employer's duty of providing the employee a safe place to work; thus, workers' compensation was the employee's exclusive remedy and the trial court did not err when it granted the co-employee's motion for summary judgment. Gafford v. Cox, 84 Ark. App. 57, 129 S.W.3d 296 (2003).

Substantial evidence supported the Workers' Compensation Commission's finding that the employee and co-employee were acting within the scope of their employment at the time of a golf outing accident where both were at the golf course for a sales meeting, which included lunch and the continued discussion and free flow of ideas regarding the employer's business while playing golf and having a team dinner with spouses. Curtis v. Lemna, 2014 Ark. 377 (2014).

Workers' Compensation Commission's decision that a co-employee was entitled to immunity under this section for a golf outing accident was supported by substantial evidence where the co-employee drove the golf cart for the employee and the co-employee to participate in the employer's team building golf outing. Curtis v. Lemna, 2014 Ark. 377 (2014).

—Dual Capacity.

Where employer manufactured asbestos products, and such products were used in employer's plants to fireproof ceilings by an outside contractor, the court applied the dual capacity doctrine, so that the Workers' Compensation Act did not bar an employee's product liability suit since the employer owed a separate duty as a manufacturer to the employee. Estate of Blakely v. Asbestos Corp., 766 F. Supp. 721 (E.D. Ark. 1991).

Under the dual persona theory, an employer may become a third person, vulnerable to tort suit, if he possesses a second persona, completely unrelated to his employer status, that could be recognized by legal standards as a seperate legal person. Thomas ex rel. City Nat'l Bank v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

Where plaintiff-employee had a third party claim against the tortfeasor at the time of the accident, and the tortfeasor subsequently merged with his employer, an action could be brought against his employer under the dual persona doctrine, in the employer's status as the successor corporation of the tortfeasor. Thomas ex rel. City Nat'l Bank v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

After the legislature amended subsection (a) to abrogate the dual-persona exception, it would be unreasonable for the court to expand that doctrine since it was clearly defunct and unequivocally annulled. Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

Underinsured Motorist Insurance.

An action by an employee against his employer's insurance carrier for underinsured motorist benefits was not an action against the employer and, therefore, was not barred by exclusive-remedy provision of the Workers' Compensation Act. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001).

Writ of Prohibition.

Employer's petition for a writ of prohibition was granted in a case where summary judgment, based on subsection (a) of this section, was denied in a negligence suit; whether an employer/employee relationship existed was within the jurisdiction of the Arkansas Workers' Compensation Commission, and there was no other remedy available to the employer because the denial of the motion for summary judgment was not reviewable, even after a trial on the merits. Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006).

Writ of prohibition was granted because a circuit court was wholly without jurisdiction to decide whether the Arkansas Workers' Compensation Act applied since there was a conflict over the narrow exception to the exclusivity doctrine; moreover, there was no adequate remedy since a motion for summary judgment was not subject to appeal. A motion to dismiss was treated as such since matters outside of the pleadings were considered. Get Rid of It Arkansas, Inc. v. Hughes, 368 Ark. 535, 247 S.W.3d 838 (2007).

Trial court lacked jurisdiction to decide the existence of an employer-employee relationship between employers and a deceased worker, for exclusivity purposes, because the Workers' Compensation Commission had exclusive jurisdiction to first decide relevant fact questions, since the facts were not so one-sided as to allow such a determination as a matter of law; thus, the employers were entitled to a writ of prohibition. Entergy Ark., Inc. v. Pope County Circuit Court, 2014 Ark. 509, 452 S.W.3d 81 (2014).

Cited: Layne-Arkansas Co. v. Henderson, 221 Ark. 691, 255 S.W.2d 423 (1953); Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804 (1955); Carter v. Fraser Constr. Co., 219 F. Supp. 650 (W.D. Ark. 1963); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); First Nat'l Bank v. Tracor, Inc., 851 F.2d 212 (8th Cir. 1988); Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988); Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991); Daniels v. Riley's Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992); Agricultural Group-Compensation Self-Insurer Fund v. Polk County Circuit Court, 331 Ark. 24, 958 S.W.2d 531 (Ark. 1998); Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112 (2000); WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000); Automated Conveyor Sys. v. Dooley, 360 Ark. 218, 200 S.W.3d 442 (2004); Phillips v. United States, 422 F.3d 709 (8th Cir. 2005); Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005); Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005).

Research References

ALR.

Workers' Compensation: Nonathlete Students as Covered Employees. 33 A.L.R.6th 251.

Ark. L. Rev.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

Case Notes

Benefits Not Precluded.

Where question on employment application was too broad and general, and asked for opinion rather than factual information, worker's negative response was not misrepresentation which would preclude worker's compensation benefits. Sawyer v. Clement Mtarri, 33 Ark. App. 125, 806 S.W.2d 7 (1991).

Evidence held insufficient to show that the claimant knowingly and willfully made a false representation on the employment application with respect to her physical condition. St. Vincent Infirmary Medical Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).

Benefits Precluded.

A false representation as to a physical condition in procuring employment will preclude the benefits of the Workers' Compensation Act for an otherwise compensable injury if it is shown that the employee knowingly and willfully made a false representation as to his physical condition, the employer relied upon the false representation, and the reliance was a substantial factor in the employment, and there was a casual connection between the false representation and the injury. Shippers Transp. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979); Shock v. Wheeling Pipe Line, 270 Ark. 57, 603 S.W.2d 446 (1980); Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985), aff'd, 288 Ark. 587, 708 S.W.2d 87 (Ark. 1986).

Evidence supported finding that claimant made a false representation to employer which precluded him from receiving benefits for subsequent injury. Shock v. Wheeling Pipe Line, 270 Ark. 57, 603 S.W.2d 446 (1980).

Elements.

A false representation on an employment application bars recovery under this chapter when three factors are established: (1) the employee must have knowingly and wilfully made a false representation as to her physical condition; (2) the employer must have relied upon the false representation, and this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury. St. Vincent Infirmary Medical Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).

Evidence.

Evidence that claimant was malingering, and evidence of claimant's spouse's active participation, held sufficient. Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708 (1997).

Cited: Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Research References

Ark. L. Notes.

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

Ark. L. Rev.

Note, Wal-Mart Stores, Inc. v. Baysinger: Retaliatory Discharge in Arkansas Workers' Compensation Cases, 45 Ark. L. Rev. 939.

Recent Developments in Tort Law (Davis v. Dillmeier Enterprises, Inc.), 51 Ark. L. Rev. 223.

U. Ark. Little Rock L.J.

Sullivan, The Arkansas Remedy For Employer Retaliation Against Workers' Compensation Claimants, 16 U. Ark. Little Rock L.J. 373.

Case Notes

Purpose.

This section was intended by the legislature to be a remedy for willful discrimination by the employer done in retaliation for the employee's having sought compensation under this chapter, not as a remedy for discrimination by the employer on the basis of the employee's disability as a result of the injury. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Applicability.

The provisions of the 1993 amendment apply only to injuries which occur after July 1, 1993; the legislature did not intend subsection (e) to be applied retroactively. Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995).

For purposes of this section, the date of the injury was the date the worker was discharged from employment. Rohrer v. Hart's Mfg. Co., 53 Ark. App. 4, 917 S.W.2d 180 (1996).

There is no public policy in this state that requires an employer to keep an employee whom the employer recognizes has become physically unsuited for the job. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).

This section's annulment of a cause of action in tort for retaliatory discharge is applicable to cases in which the date of discharge is after July 1, 1993. Malone v. Trans-States Lines, 325 Ark. 383, 926 S.W.2d 659 (1996).

Common-law Remedies for Retaliation.

By enacting § 16-118-107, the Arkansas General Assembly did not intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers' compensation law which it expressly annulled at this section. Lambert v. LQ Mgmt., L.L.C., 2013 Ark. 114, 426 S.W.3d 437 (2013).

Effect of Amendments.

The legislative enactment of the 1993 amendments was a direct annulment of the former law supporting a private cause of action for retaliatory discharge in connection with worker's compensation claims. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).

This section was amended specifically to annul the holding in Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); however, the amendments are only applicable to injuries occurring after July 1, 1993. Pedigo v. P.A.M. Transp., Inc., 891 F. Supp. 482 (W.D. Ark. 1994).

Wrongful discharge claim is not governed by any law other than that in effect at the time it occurred; it was the intent of the General Assembly to abolish the cause of action for wrongful discharge as of July 1, 1993. Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995).

This section was amended in 1993 in order to preserve the exclusive remedy of the Workers' Compensation Act by eliminating the common-law remedies for retaliatory or wrongful discharge. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Joint Petitions.

Former employer's claim was not barred by the language of the joint petition filed in the workers' compensation proceeding, wherein she agreed that if her petition for workers' compensation benefits was approved she would have no further claim under the Arkansas Workers' Compensation Act of any nature, since her suit in circuit court was not a claim under the Arkansas Workers' Compensation Act but a cause of action for retaliatory discharge. Rohrer v. Hart's Mfg. Co., 53 Ark. App. 4, 917 S.W.2d 180 (1996).

Post-Injury Discharge.

Where an employee has alleged two separate injuries, one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her physical disability as a result of the injury, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by the Arkansas Civil rights Act, § 16-123-101 et seq.Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

There is no remedy under this chapter for an employee who is terminated from his or her job on the basis of a disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of this chapter does not preclude an employee from bringing an action under the Arkansas Civil Rights Act, § 16-123-101 et seq., based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Retaliatory Discharge.

Claims of retaliatory discharge which are filed after July 1, 1993, the effective date of Acts 1993, No. 796, are claims made to the Arkansas Worker's Compensation Commission rather than to the courts; this remedy should not be construed as creating an exception to the employment-at-will doctrine. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).

Substantial evidence supported the finding that the employer did not willfully terminate the claimant where the claimant testified that the owner of the employer told him that he he was no longer needed and that he had been replaced, but (1) the owner stated that he told the claimant to come in the next morning to discuss his work schedule, (2) the bookkeeper in charge of payroll testified that she did not have any documentation that the claimant had been fired and that his case file simply reflected that he had been injured, paid workers' compensation benefits, and had not returned to work when he was released by his doctor, and (3) the claimant' supervisor testified that she had the authority to hire and fire personnel, and that, to her knowledge, the claimant had not been fired. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000).

Cited: Shippers Transp. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979); Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991); Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).

Research References

Ark. L. Rev.

Recent Development: Workers Compensation — Defining “Employee,” 57 Ark. L. Rev. 441 (2004).

Case Notes

Application.

Appellant partially relied on subsection (a) of this section, but her reliance was misplaced; it is true that the terms of a contract, by themselves, cannot convert an employee into an independent contractor if the other surrounding facts do not support that conclusion, but in this case, the Workers' Compensation Commission found that the facts supported appellee's position that appellant was acting as an independent contractor, not an employee, and the court could not say that others could not have reached the same conclusion, such that the court affirmed the denial of benefits. Long v. Superior Senior Care, Inc., 2013 Ark. App. 204, 427 S.W.3d 106 (2013).

Claims for Benefits.

Neither this section nor § 11-9-508 authorizes the medical provider to initiate a claim on behalf of an employee in the event a worker elects not to file a claim for benefits. Sloat Chiropractic Clinic v. Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986).

Executives.

This section is designed for permissive waiver of coverage by executives, and it does not confer employee status on such executives automatically. Whether a corporate officer is an employee is to be determined by nature of work and circumstances of each case. Gilbert v. Gilbert Timber Co., 292 Ark. 124, 728 S.W.2d 507 (1987).

Private Insurance.

President and general manager of a corporation, who, along with his wife, owned all of the corporate stock could not disregard the corporate character of his employer and claim the status of a proprietor under this section in order to come within the terms of private insurance since he was not the owner of anything except shares of stock in the corporation. Prudential Ins. Co. of Am. v. Jones, 1 Ark. App. 51, 613 S.W.2d 114 (1981).

Self-Employed Employers.

Subsection (b) of this section applies only to corporations, and therefore “self-employed employers” must be corporate officers. 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).

The terms “sole proprietor” and “self-employed employer,” as used in the Worker's Compensation Act, are neither synonymous nor interchangeable. Under § 11-9-102(2) (see now § 11-9-102(10)(E), defining “employee”), a “sole proprietor” must file written notice with the Workers' Compensation Commission to be included in the definition of an “employee,” while under § 11-9-108(b), 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).

Phrase “self-employed employer” refers to corporate officers and does not include sole proprietors and partners. Gilbert v. Gilbert Timber Co., 292 Ark. 124, 728 S.W.2d 507 (1987).

Stockholder.

Where the claimant, who, with his wife, owned all of the corporate stock, had not elected to exclude himself from coverage under this chapter, injuries would be compensable if suffered in the course of his employment. Queen v. Royal Serv. Co., 6 Ark. App. 149, 645 S.W.2d 343 (1982).

Waiver.

This section was intended to protect employees against practice of unscrupulous employers to avoid compensation liability by having employees sign a contract which waived all rights to compensation in consideration of being employed. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).

There is no provision in the law which will force an injured employee to accept or keep compensation benefits to which he is entitled after they are paid or tendered to him. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).

Where employee voluntarily refunded amounts compensation carrier had tendered as compensation and medical payments because he wished to collect personal injury judgment against co-employee from carrier under employer's policy which was later held not to cover the judgment, the refunded amounts belonged to the employee and not to the carrier and employee was entitled to them even though period of limitations for compensation claims had expired. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).

Fact that employee applied for and received benefits for nonoccupational sickness and accident on a group insurance policy did not constitute a waiver of any claims for workers' compensation on the basis of the same illness. International Paper Co. v. Langley, 251 Ark. 859, 475 S.W.2d 686 (1972).

The claimant was entitled to mileage costs for commuting to and from a university, notwithstanding a written rehabilitation agreement which expressly excluded such costs, since § 11-9-505 makes the reimbursement of reasonable travel expenses mandatory and since this section invalidated the parties' written agreement. Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).

Workers' Compensation Commission erred in finding that an enrollee in a non-profit organization's alcoholism program was not an employee and in denying him benefits where his work provided a benefit to the non-profit and the agreement signed by the enrollee waiving benefits did not necessarily waive his status as an employee, particularly where the conduct of the parties showed an implied contract of hire after the agreement was signed; the mere fact that the enrollee signed such an agreement did not defeat the substance of the parties' relationship. Dixon v. Salvation Army, 86 Ark. App. 132, 160 S.W.3d 723 (2004), rev'd, 360 Ark. 309, 201 S.W.3d 386 (2005).

In a workers' compensation matter, an agreement signed by the employee to select the State of Ohio as the state of exclusive remedy was void and unenforceable under both the Arkansas Workers' Compensation Law and the Arkansas Insurance Code, subdivision (c)(4)(A) of this section; the agreement at issue was quite clearly a contract to relieve the employer in whole or in part from any liability. Williams v. Johnson Custom Homes, 374 Ark. 457, 288 S.W.3d 607 (2008).

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Irby v. Davis, 311 F. Supp. 577 (E.D. Ark. 1970); Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984); Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005); Cloverleaf Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005); Steinert v. Ark. Workers' Comp. Comm'n, 2009 Ark. App. 719, 361 S.W.3d 858 (2009).

Case Notes

Construction.

Allowing the offsets pursuant to the clear language of § 11-9-411(a) did not violate this section, which states that the claimant could not be required to pay the employer's workers' compensation premium. Dooley v. Automated Conveyor Sys., 84 Ark. App. 412, 143 S.W.3d 585 (2004).

Applicability.

This section does not prohibit an employer from contracting with independent contractors to provide Workers' Compensation insurance for them and deduct their pro rata share of the premiums from their remuneration nor entitle the independent contractors to a refund of the premiums so deducted. Hughes v. Hooker Bros., 237 Ark. 544, 374 S.W.2d 355 (1964).

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Irby v. Davis, 311 F. Supp. 577 (E.D. Ark. 1970); Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984).

Research References

Ark. L. Rev.

Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111.

Note, In re Holt: Personal Property Exemptions and the Forgotten Arkansas Constitution, 42 Ark. L. Rev. 759.

Laurence, In re Holt and the Re-making of Arkansas Exemption Law: Commentary after the Rout, 43 Ark. L. Rev. 235.

U. Ark. Little Rock L.J.

Legislative Survey, Business Law, 4 U. Ark. Little Rock L.J. 579.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Case Notes

Construction.

The language in subsection (a) of this section pertaining to the garnishment of benefits and “other legal process” necessarily implies a continuing court-decreed obligation as set forth in subsection (g) of this section, a failure of the obligated party to make regular payments, and an established right on the part of the entitled party to a withholding of the amount specified in a decree or order of the chancery or county court. Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994).

Subsection (c) of this section provides a means for any party seeking enforcement of a child support obligation to receive information from the Workers' Compensation Commission about an obligated employee. Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994).

The information supplied pursuant to subsection (c) of this section is limited to the name, address, and social security number of the obligated employee, along with the names of the employer and the workers' compensation carrier, and may be used in an application to a court for enforcement through legal process. Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994).

Award by State Claims Commission.

Where State Claims Commission awarded payment to debtor but did not, under § 19-10-204, have jurisdiction to make the award, the award was in the nature of an award under Workers' Compensation and was not for the benefit of creditors in bankruptcy proceeding and was not subject to legal process. Dinning v. Wills, 4 B.R. 475 (Bankr. E.D. Ark. 1980).

Bankruptcy.

Workers' Compensation benefits which were received by the debtor prior to the filing of his petition for relief under Chapter 13 of the Bankruptcy Code and were segregated from other assets were exempt from payment to unsecured creditors. In re Covey, 1984 Bankr. LEXIS 6408, 36 B.R. 696 (Bankr. W.D. Ark. 1984).

Claims for Benefits.

A medical provider does not have standing to initiate a claim on the basis of an employee's execution of an assignment of payment, as this section provides that the right to compensation is not assignable. Sloat Chiropractic Clinic v. Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986).

Continuation of Exemption.

Workers' Compensation proceeds continue to be exempt from claims of creditors after the money has been paid the injured worker; any other interpretation would defeat the purpose of the exemption, denying the worker the use of his money. In re Covey, 1984 Bankr. LEXIS 6408, 36 B.R. 696 (Bankr. W.D. Ark. 1984).

Standing.

Where wife, having knowledge of her husband's outstanding workers' compensation claim, failed to reserve in the divorce decree any interest in any future lump-sum settlement that he might make, wife had no right to ask the court on appeal to decide how the settlement money should be spent by her former spouse. Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994).

Tuition Payments.

Trial court lacked jurisdiction to modify payments for parochial school education because the parties' agreement on that subject was an independent contract separate from child support; tuition payments in this case did not “support” or “care” for the children where they were in addition to a support payment, and there was no deviation based on the tuition. An independent property-settlement agreement, if approved by a court and incorporated into a divorce decree, cannot be subsequently modified by the court. Fischer v. Fischer, 2015 Ark. App. 116, 456 S.W.3d 779 (2015).

Cited: Martin v. Scharbor, 95 Ark. App. 52, 233 S.W.3d 689 (2006).

Research References

ALR.

Application of workers' compensation laws to illegal aliens. 121 A.L.R.5th 467.

Case Notes

Beneficiaries.

Both of a deceased employee's parents were properly awarded dependent benefits under § 11-9-527 as § 11-9-527 and this section had to be read together to understand the Arkansas legislature's intent, and the appellate court was not convinced that by the use of the word “or” to separate the words father and mother in this section, the legislature intended to render the award of benefits to each parent provided by § 11-9-527 void. White Oak Constr. Co. v. Olvera, 2011 Ark. App. 682, 386 S.W.3d 616 (2011).

Deceased employee's parents were properly awarded dependent benefits under § 11-9-527 as the one-year period in this section would have been July 2006 through July 2007, and the testimony presented by his parents, coupled with a portion of the records of money transfers (July 3, 2006 through July 25, 2007), supported the determination that the decedent provided support for one year prior to the date of his death. White Oak Constr. Co. v. Olvera, 2011 Ark. App. 682, 386 S.W.3d 616 (2011).

Research References

ALR.

Right to workers' compensation for emotional distress or like injury suffered by claimant as a result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances. 108 A.L.R.5th 1.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 109 A.L.R.5th 161.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability of particular physical injuries or illnesses. 112 A.L.R.5th 509.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli. 113 A.L.R.5th 115.

Ark. L. Notes.

Copeland, Workers' Compensation, Exclusivity, and the “Balderdash” response, 1996 Ark. L. Notes 1.

Ark. L. Rev.

Newell, Travelers Insurance Co. v. Smith: Arkansas Employers Are Exposed to Greater Liability, 52 Ark. L. Rev. 503.

U. Ark. Little Rock L.J.

Lucy, Workers' Compensation Law: Act 797 of 1993 and the Definition of “Compensable Injury,” 20 U. Ark. Little Rock L.J. 265.

Case Notes

Constitutionality.

Legislature had a rational and legitimate public purpose for distinguishing between mental and physical workers' compensation injuries under subdivision (b)(1) of this section, limiting compensation for mental injuries to 26 weeks, because there was a greater potential for fraudulent claims being advanced for mental injuries, and permitting more extensive benefits for mental injuries would act as a disincentive for workers to devote themselves fully to psychological or psychiatric treatment and recovery. Therefore, subdivision (b)(1) did not violate equal protection under Ark. Const., Art. 2, § 3. Pat Salmon & Sons, Inc. v. Pate, 2009 Ark. App. 272, 307 S.W.3d 46 (2009).

Action by Spouse.

Because action for emotional distress by wife of injured employee was one manifestly premised on a nonphysical injury, and because her injury was not compensable and beyond the scope of coverage of this chapter, the claim was not barred by the exclusive-remedy provision of this chapter. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

Bipolar Disorder.

Employee's bipolar disorder was not compensable where there was no testimony as to whether the bipolar diagnosis met the criteria of the Diagnostic and Statistical Manual of Mental Disorders. Hope Livestock Auction Co. v. Knighton, 62 Ark. App. 74, 966 S.W.2d 943 (1998), overruled in part, Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).

Although it would be preferable in cases of mental injury or illness for a psychiatrist or psychologist to correlate the basis of his opinion to the DSM criteria, substantial evidence supported the determination that the claimant's bipolar disorder was a compensable work-related injury where a physician, in both his deposition and progress notes, described the claimant's bipolar disorder in such detail that the Workers' Compensation Commission could easily make the finding that the diagnosis met the DSM-IV criteria. Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999).

Duration of Compensation.

Court rejected employee's claim that under subdivision (b)(1) of this section, he was entitled to an additional 26 weeks' compensation for mental injuries on top of the more than 26 weeks he had received of temporary total disability benefits. The statute was clearly designed to limit the duration of compensation for mental injuries, not extend it beyond that to which the employee was already entitled. Pat Salmon & Sons, Inc. v. Pate, 2009 Ark. App. 272, 307 S.W.3d 46 (2009).

Evidence.

Where claimant sustained compensable physical injuries, and his primary care physician recommended that he not return to work until he had a psychological evaluation, claimant seeking to determine whether his mental distress was the result of his physical injuries should have been provided with a full psychological evaluation by a licensed psychiatrist or psychologist. Terrell v. Arkansas Trucking Serv., Inc., 60 Ark. App. 93, 959 S.W.2d 70 (1998).

Compensation denied where the claimant failed to meet the subdivision (a)(2) requirement of showing that the diagnosis of the condition met the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders; the burden of proof was a preponderance of the evidence. Branscum v. RNR Constr. Co., 60 Ark. App. 116, 959 S.W.2d 429 (1998).

Evidence was sufficient to support an award of 26 weeks of disability benefits to the claimant where there was testimony from the claimant, his wife, and two physicians regarding the claimant's problems being around people and functioning in society due to his bipolar disorder. Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999).

Arkansas Workers' Compensation Commission was correct in affirming the denial of a claimant's request for additional disability benefits for the claimant's mental injury; the claimant failed to show entitlement to compensation by a preponderance of the evidence and the Commission displayed a substantial basis for the denial of the relief requested by the claimant. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (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).

Substantial evidence was lacking to support the Workers' Compensation Commission's finding of a compensable mental injury under this section, as there was no medical opinion offered to show that a meat cutter's mental condition was caused by his physical injury. Kroger Ltd. P'ship v. Fee, 2014 Ark. App. 577, 446 S.W.3d 628 (2014).

Workers' Compensation Commission erred in denying an employee's request for psychological treatment because there was evidence in the record that a licensed counselor and a neurologist diagnosed the employee with a psychological disorder after she sustained an admittedly compensable injury to her head during the course and scope of her employment, and that diagnosis had been reviewed and approved by both a licensed psychiatrist and a psychologist. Kuakahela v. Rose Aircraft Servs., 2015 Ark. App. 350, 465 S.W.3d 1 (2015).

Workers' Compensation Commission's ruling that a claimant suffered from a major depressive order was reversed where the licensed psychologist's medical evidence established, at best, only four of the five symptoms found by the Commission, there was no time frame to indicate that the claimant's symptoms occurred within the same two-week period or with the frequency required, and thus, the supporting medical evidence did not meet the established criteria for depression in accordance with the Diagnostic and Statistical Manual of Mental Disorders. Lincoln Pub. Schools v. Secrist, 2016 Ark. App. 315, 496 S.W.3d 396 (2016).

Injury Held Compensable.

Where employee began stuttering and having difficulty walking after receiving an electrical shock, and his physicians concluded that the psychological disorders were the direct result of the electrical shock, and where employee also received a burn on his hand from the shock, i.e., a physical injury, then employee's mental injury was compensable. Dugan v. Jerry Sweetster, Inc., 54 Ark. App. 401, 928 S.W.2d 341 (1996).

Jurisdiction.

Supreme Court of Arkansas did not need to decide whether sexual assault is a crime of violence under this section as a matter of law, because a factual inquiry existed regarding whether the employee's alleged mental injuries were derived from any physical injuries and whether a crime of violence occurred. Truman Arnold Cos. v. Miller County Circuit Court, 2017 Ark. 94, 513 S.W.3d 838 (2017).

Employer's petition for writ of prohibition was granted because the Workers' Compensation Commission, not the circuit court, had exclusive jurisdiction to decide questions of fact regarding the applicability of the Workers' Compensation Law to the employee's claims. The employee's claims of negligent hiring and retention were claims of negligence, not intentional tort; the question whether the alleged sexual assault arose out of the employment was a factual inquiry; the causal relationship between the alleged physical and mental injuries raised issues of fact relevant to subsection (a) of this section; and the facts as presented in the complaint could not be determined to fall outside the Workers' Compensation Law as a matter of law. Truman Arnold Cos. v. Miller County Circuit Court, 2017 Ark. 94, 513 S.W.3d 838 (2017).

Requirements.

This section and § 11-9-102(5)(A) 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); Amlease, Inc. v. Kuligowski, 59 Ark. App. 261, 957 S.W.2d 715 (1997).

Cited: Phillips v. Arkansas State Hwy. & Transp. Dep't, 52 Ark. App. 170, 916 S.W.2d 128, 1996 Ark. App. LEXIS 116 (1996); Ritchie Grocery v. Glass, 70 Ark. App. 222, 16 S.W.3d 289 (2000).

Research References

U. Ark. Little Rock L.J.

Lucy, Workers' Compensation Law: Act 797 of 1993 and the Definition of “Compensable Injury,” 20 U. Ark. Little Rock L.J. 265.

Case Notes

Construction.

Logical interpretation of subdivisions (b)(1) and (2) of this section is that if a heart attack is proved to have been caused by the physical or mental stress arising out of the performance of work that is extraordinary and unusual in comparison to the employee's usual work, the heart attack is compensable; but where an employee suffers an on-the-job heart attack in the absence of work that is unusual and extraordinary, or in the absence of the occurrence of some unusual or unpredicted incident, it is not compensable, regardless of the level of physical or mental distress the employee experiences. Family Dollar Stores v. Edwards, 97 Ark. App. 156, 245 S.W.3d 181 (2006).

In interpreting the statute, courts hold that preexisting conditions do not preclude a finding that a work-related incident is the major cause of physical harm. Estate of Slaughter v. City of Hampton, 98 Ark. App. 409, 255 S.W.3d 872 (2007).

Accident as Cause Shown.

An accident was held to be the major cause of the claimant's heart attack where he suffered the attack immediately following exposure to unusually heavy and thick smoke while ventilating the roof of a burning building, and where the work that precipitated the heart attack was unusual and extraordinary because the claimant usually drove a fire truck. City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997).

Where an employee had a fatal heart attack while he was assembling lawn tractors and other equipment while at work, and his wife was awarded dependency benefits, it was not error for the Workers' Compensation Commission to find that the work-related conditions were the major cause of the employee's heart attack; the same evidence supporting the Commission's findings that the employee's accident was the major cause of his heart attack and that his work required extraordinary and unusual exertion also supported the Commission's award of dependency benefits. Huffy Serv. First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002).

Appellate court affirmed a workers' compensation award to the wife of decedent, who had a heart attack after he broke up a fight at school, as a medical doctor testified that the energy expended in breaking up the fight was the major cause of the heart attack and, thus, it was a compensable injury under this section. Dollarway Sch. Dist. v. Lovelace, 90 Ark. App. 145, 204 S.W.3d 64 (2005).

Employee was properly awarded workers' compensation benefits for a heart attack that she suffered one day after she was robbed at gunpoint while working as a cashier as no serious argument could be made that the combined physical exertion and emotional distress that she experienced while being robbed at gunpoint were not “extraordinary and unusual.” Family Dollar Stores v. Edwards, 97 Ark. App. 156, 245 S.W.3d 181 (2006).

Arkansas Workers' Compensation Commission erred in denying a widow's claim for temporary total disability benefits and the payment of expenses where the employee's treating physician was resolute in the opinion that the accidental inhalation of chlorine gas was the major precipitating event that led to the employee's respiratory failure, not the employee's HIV or chronic obstructive pulmonary disease (COPD) in the form of emphysema. Estate of Slaughter v. City of Hampton, 98 Ark. App. 409, 255 S.W.3d 872 (2007).

Employee's exertion in carrying sheets of drywall on an extremely hot day when the employee assisting him was small and inexperienced were unusual conditions that allowed the employee to recover workers' compensation benefits for a myocardial infarction, or heart attack, under subsection (b) of this section. Ayers Drywall & Insulation v. Carey, 2009 Ark. App. 749, 352 S.W.3d 334 (2009).

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 subsection (a) of this section, because exposure to extreme heat while installing a new mud flap on a truck was the major cause of the employee's heart attack and death; despite any preexisting propensities for such an event, the employee had performed the job duties without restrictions. J Mar Express, Inc. v. Poteete, 2011 Ark. App. 122, 381 S.W.3d 159 (2011).

There was substantial evidence to support the denial by an administrative law judge and the Workers' Compensation Commission of an employee's claim pursuant to this section, as the employee did not prove by a preponderance of the evidence that he suffered a compensable heart attack while working for the employer; there was no evidence to show what caused the type of plaque rupture that he suffered. Kimble v. Hino Motors Mfg. United States, Inc., 2012 Ark. App. 646 (2012).

Evidence.

A fireman's activities within 48 hours of his death may have been the major cause of his heart attack where those activities included participation in a strenuous encounter and agility test on a very hot and humid day and it appeared that a physician who testified in the proceeding was not aware of the fireman's activities. Williford v. City of Little Rock, 62 Ark. App. 198, 969 S.W.2d 687 (1998).

Substantial evidence supported the decision that the claimant suffered a compensable injury where the claimant testified that he engaged in unusual and extraordinary exertion on the day of employment at issue. Mountain Home Mfg. v. Hafer, 66 Ark. App. 127, 991 S.W.2d 127 (1999).

Finding by the Arkansas Workers' Compensation Commission that the truck driver's cardiac injury was work related was supported by substantial evidence when the cardiac incident occurred after the driver assisted others in moving 800 pounds of equipment and the driver's treating cardiologist testified that the strenous work conditions were a major cause of the driver's heart injury. Cloverleaf Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005).

Substantial evidence existed to support the Workers' Compensation Commission's finding that a claimant failed to prove a compensable injury. Conflicting medical testimony was for the Commission to resolve, and reasonable minds could determine that the claimant suffered a cardiac arrest for reasons other than work-related heat exhaustion. Robbins v. Hilark Indus., 2017 Ark. App. 431, 526 S.W.3d 895 (2017).

Research References

ALR.

Status as Alter Ego of Employer for Purposes of Exclusive Remedy Rule Barring Third-Party Action Under Workers' Compensation Statutes, 27 A.L.R.7th Art. 2 (2018).

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.

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.

Research References

Am. Jur. 82 Am. Jur. 2d, Work. Comp., § 79.

Ark. L. Rev.

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

C.J.S. 100 C.J.S., Work. Comp., § 700 et seq.

Research References

U. Ark. Little Rock L.J.

Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.

Case Notes

Appointment.

Although gubernatorial power of appointment is vested with a reasonable latitude of discretion in classifying the persons to be appointed to the commission, that discretion is not without limit or restraint; classification of appointees to commission must measure up to minimal legal standards. Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987).

The manner in which commission members are chosen does not render this section unconstitutional. Quinn v. Webb Wheel Prods., 59 Ark. App. 272, 957 S.W.2d 187 (1997), aff'd, 334 Ark. 573, 976 S.W.2d 386 (Ark. 1998).

Change in Position.

Where the Chairman of the Workers' Compensation Commission voted against the claimant in compensation case and later assumed the employer's position, there was no indication that this meant that he unfairly decided against the claimant. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981).

Quorum.

By enacting subdivision (c)(1) of this section the legislature intended to create the mechanics for appointment of members to fill vacancies caused by disqualification but, in doing so, the legislature did not intend to modify, repeal, or alter the quorum provision of § 11-9-204; accordingly, where one commissioner disqualified himself prior to issuance of an opinion, the opinion issued by the remaining two commissioners was not invalid. 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).

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988); Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991); Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991); Quinn v. Webb Wheel Prods., 52 Ark. App. 208, 915 S.W.2d 740 (1996).

Case Notes

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988).

Case Notes

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988).

Case Notes

Findings.

The commission is required to rule on constitutional questions that are properly before it in order to provide the appeals court with fact-findings sufficient to decide the constitutional issue. Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).

Quorum.

By enacting § 11-9-201(c)(1), the legislature intended to create the mechanics for appointment of members to fill vacancies caused by disqualification but, in doing so, the legislature did not intend to modify, repeal, or alter the quorum provision of this section; accordingly, where one commissioner disqualified himself prior to issuance of an opinion, the opinion issued by the remaining two commissioners was not invalid. 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).

Validity.

Official actions taken by a commissioner while serving as commissioner were legally valid and effectual notwithstanding the supreme court's subsequent determination that he was not qualified to serve. Thus commissioner's decision would be valid even though only one other commissioner participated in the decision. Appleby v. Belden Corp., 22 Ark. App. 243, 738 S.W.2d 807 (1987).

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988); Southwest Ark. Dev. Council, Inc. v. Tidwell, 95 Ark. App. 27, 233 S.W.3d 190 (2006); Walker v. Cooper Auto., 289 S.W.3d 184 (2008).

Research References

Ark. L. Rev.

Leflar, Compensation for Work-Related Illness in Arkansas, 41 Ark. L. Rev. 89.

Case Notes

In General.

Commission must administer its rules subject to basic rules of fair play. Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988).

Dismissal of Claim.

Section 11-9-702(a)(4) grants the Commission authority to dismiss a claim without prejudice; under the authority granted by subdivision (a)(1)(A) of this section, the Commission has promulgated a rule which provides that if a party requests that a claim be dismissed for want of prosecution, the Commission may dismiss the claim with prejudice. Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730 (1996).

Cited: Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968); Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Webb v. Workers' Comp. Comm'n, 292 Ark. 349, 730 S.W.2d 222 (1987); Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988); Harrington Constr. Co. v. Williams, 45 Ark. App. 126, 872 S.W.2d 426 (1994); Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).

Research References

Ark. L. Rev.

Leflar, Compensation for Work-Related Illness in Arkansas, 41 Ark. L. Rev. 89.

Case Notes

Appeals.

Where the law judge reserved his ruling on the permanent disability issue, the Workers' Compensation Commission could not conduct a de novo review until the law judge had heard and decided that issue. Wooten v. Arkansas Aluminum Window & Door, Inc., 17 Ark. App. 209, 706 S.W.2d 198 (1986).

Although the commission has the statutory authority to require that parties specify all the issues to be presented for review, it also has the statutory duty to decide the issues before it on the basis of the record as a whole and to decide the facts de novo. Wilson v. Cargill, Inc., 45 Ark. App. 174, 873 S.W.2d 171 (1994).

The Arkansas Workers' Compensation Commission is not an appellate court; it is, instead, the fact finder, and as such has a duty and statutory obligation to make specific findings of fact on de novo review based on the record as a whole, and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Wilson v. Cargill, Inc., 45 Ark. App. 174, 873 S.W.2d 171 (1994).

Constitutional Issues.

Constitutional issues must be raised before the Commission in order to preserve them for appeal, and the Commission is required to rule on constitutional questions that are properly before it. Jefferson v. Munsey Prods., Inc., 55 Ark. App. 105, 930 S.W.2d 396 (1996).

Coverage Determination.

The Workers' Compensation Commission had jurisdiction to decide whether there was a Workers' Compensation policy in force at the time of the injury of farmworker and whether the worker was an employee. Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980).

The commission has jurisdiction to pass upon questions relating to Workers' Compensation insurance policy when ancillary to the determination of the claimant's rights, including the coverage and its extent. Great Cent. Ins. Co. v. Mel's Texaco, 8 Ark. App. 236, 651 S.W.2d 101 (1983).

Where a third-party tort action was filed against a company based on the allegation that claimant was a special employee of the company, in granting a writ of prohibition the Court implicitly held that the special employee issue was to be decided by the Arkansas Workers' Compensation Commission as it had exclusive, original jurisdiction to determine the applicability of the Arkansas Workers' Compensation Act. Nucor Corp. v. Rhine, 366 Ark. 550, 237 S.W.3d 52 (2006).

Findings.

The commission is required to rule on constitutional questions that are properly before it in order to provide the appeals court with fact-findings sufficient to decide the constitutional issue. Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).

Merits of an issue relating to an authorized treating physician were not considered because the issue was not raised or ruled on below. The Workers' Compensation Commission made no finding on whether appellants were responsible for paying for the treatment under the change-of-physician provisions in § 11-9-514. Ark. Dep't of Parks & Tourism v. Price, 2016 Ark. App. 109 (2016).

Findings.

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).

Arkansas Workers' Compensation Commission had full authority under subdivision (a)(5) of this section to make a determination as to which one of two employers the employee was working for at the time of the accident. Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753 (2006).

Jurisdiction over Carrier.

Jurisdiction of the commission over the employer also gave it jurisdiction over the insurance carrier. Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980).

Lump-Sum Settlements.

The Workers' Compensation Commission is granted broad discretionary powers in approving lump-sum settlements and unless that discretion was abused or substantial evidence was lacking, its decisions will not be overturned on review. Stiles v. Reynolds Metals Co., 263 Ark. 321, 564 S.W.2d 520 (1978).

Even though claimant, who desired lump-sum settlement, wisely invested his money, it was not an abuse of discretion for Workers' Compensation Commission to deny the settlement. Stiles v. Reynolds Metals Co., 263 Ark. 321, 564 S.W.2d 520 (1978).

Overpayment of Benefits.

Arkansas Workers' Compensation Commission did not err in approving a three-percent offset for overpayment of a claimant's permanent anatomical impairment rating to the insurer against the claimant's future benefits because the Commission had the full power and authority under subdivision (a)(7) of this section to order the reimbursement of employers for amounts advanced and because sound policy reasons existed for awarding credit for an overpayment of benefits. Maulding v. Price's Util. Contrs., Inc., 2009 Ark. App. 776, 358 S.W.3d 915 (2009), rehearing denied, 2010 Ark. App. 51 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 222 (Apr. 22, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 227 (Apr. 22, 2010).

Remand.

The commission is authorized to take testimony by deposition or other means under subdivision (a)(10) or to remand the matter to the judge for the purpose of taking additional evidence under § 11-9-704(b)(7). Quinn v. Webb Wheel Prods., 52 Ark. App. 208, 915 S.W.2d 740 (1996).

Cited: Ward Furn. Mfg. Co. v. Reather, 234 Ark. 151, 350 S.W.2d 691 (1961); Tri State Ins. Co. v. Employers Mut. Liab. Ins. Co., 254 Ark. 944, 497 S.W.2d 39 (1973); Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W.2d 819 (1976); Wallis v. Whirlpool Corp., 12 Ark. App. 101, 671 S.W.2d 760 (1984); Webb v. Workers' Comp. Comm'n, 286 Ark. 399, 692 S.W.2d 233 (1985); Thornton v. Bruce, 33 Ark. App. 31, 800 S.W.2d 723 (1990); TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992).

Research References

Am. Jur. 82 Am. Jur. 2d, Work. Comp., § 59 et seq.

C.J.S. 100 C.J.S., Work. Comp., § 646 et seq.

Research References

U. Ark. Little Rock L.J.

Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.

Case Notes

Second Injury Trust Fund.

It is not a violation of due process for the Workers' Compensation Commission to decide cases involving the Second Injury Jury Trust Fund. Lambert v. Baldor Elec., 44 Ark. App. 117, 868 S.W.2d 513 (1993).

Any consideration of the Second Injury Trust Fund's solvency is inappropriate where a claimant is entitled to benefits from the fund. Stucco Plus v. Rose, 327 Ark. 314, 938 S.W.2d 556 (Ark. 1997).

Cited: Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).

Case Notes

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

Case Notes

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

Case Notes

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

Case Notes

Legislative Power.

The objects of the taxation in this section are municipalities and counties which are entities created by the state; as such, the legislature was acting well within its power when it imposed this tax. County of Howard v. Rotenberry, 286 Ark. 29, 688 S.W.2d 937 (1985).

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

Case Notes

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

Research References

ALR.

Workers' compensation immunity as extending to one owning controlling interest in employer corporation. 30 A.L.R.4th 948.

Workers' compensation liability of successive employers for disease or condition allegedly attributable to successive employments. 34 A.L.R.4th 958.

Third-party tortfeasor's right to have damages recovered by employee reduced by amount of employee's workers' compensation benefits. 43 A.L.R.4th 849.

Workers' compensation law as precluding employee's suit against employer for third person's criminal attack. 49 A.L.R.4th 926.

Third-party tort liability of corporate officer to injured workers, 76 A.L.R.4th 365.

Ownership interest in employer business as affecting status as employee for workers' compensation purposes, 78 A.L.R.4th 973.

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.

Uninsured and underinsured motorist coverage, validity, construction, and effect of policy provision purporting to reduce coverage by amount paid or payable under workers' compensation, 31 A.L.R.5th 116.

Right of employer or workers' compensation carrier to lien against or reimbursement out of uninsured or underinsured motorist proceeds payable to employee injured by third party, 33 A.L.R.5th 587.

Am. Jur. 82 Am. Jur. 2d, Work. Comp., § 223 et seq.

82 Am. Jur. 2d, Work. Comp., §§ 228 et seq., 464 et seq.

Ark. L. Rev.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

C.J.S. 99 C.J.S., Work. Comp., § 288 et seq.

100 C.J.S., Work. Comp., § 353 et seq.

Case Notes

Purpose.

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).

Research References

ALR.

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 Injury Suffered by Employee While Driving Employer's Vehicle. 28 A.L.R.6th 1.

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.

Right to Compensation under State Workers' Compensation Statute for Injuries Sustained During or as Result of Horseplay, Joking, Fooling, or the Like. 41 A.L.R.6th 207.

Injury to Employee as Arising out of or in Course of Employment for Purposes of State Workers' Compensation Statute — Effect of Employer-Provided Living Quarters, Room and Board, or the Like. 42 A.L.R.6th 61.

Ark. L. Rev.

Workmen's Compensation — Employee Returning to Work After Weekend — Whether “in Course of Employment,” 7 Ark. L. Rev. 423.

The Relationship of Effort or Stress to Coronary Heart Disease, 17 Ark L. Rev. 39.

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, 20 Ark. L. Rev. 414.

Workmen's Compensation — Recreational Activities Within the Scope of Employment, 23 Ark. L. Rev. 682.

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.

Case Notes

Construction.

In considering a claim, the Workers' Compensation Commission must follow a liberal approach and draw all reasonable inferences favorable to the claimant; to further the beneficent and humane purposes of the Workers' Compensation law, all doubtful cases should be resolved in favor of the claimant. American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985).

Applicability.

The Arkansas Workers' Compensation Act does not specify what extrastate situations it covers. An employer's liability, 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).

Living assistance services provided by mother to disabled son were held not to be compensable nursing services. Little Rock Convention & Visitors Bureau v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997).

Appeal.

On appeal, the court will review the evidence in the light most favorable to the findings of the Workers' Compensation Commission and will give the testimony its strongest probative value in favor of the order of the commission. Southwest Pipe & Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984).

Assaults.

In the case of assaults, the general rule is that injuries resulting from an assault are compensable where the assault is casually related to the employment, but such injuries are not compensable when the assault arises out of purely personal reasons. Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989).

Where altercation occurred during business hours, on the employer's premises, and as the result of a quarrel having its origin in the employment, the injuries were compensable. Welch's Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992).

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).

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).

Compensation.

The term “compensation” as used in this section refers to three kinds of benefits: (1) the money allowance payable for disability; (2) the medical and hospital services and supplies; and (3) funeral expenses. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Concurrent Benefit Rule.

The “concurrent benefit” rule calls for a liberal construction of the requirements of the statute that requires that the injury resulting in death must arise “out of and in the course of employment.” Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960).

The “concurrent benefit” rule had no application where deceased's death did not occur while he was performing the duties of his employment. Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960).

The “concurrent benefit” rule cannot be applied to circumvent the necessity of a claimant first showing that his injury arose out of and in the course of employment. Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960).

False Representation.

The trial court did not err in granting a workers' compensation award to an employee, even though he falsely represented on his employment application that he had no previous injury, where the employer told the employee to omit any reference to the injury because it would make his insurance go up. Roberts-McNutt, Inc. v. Williams, 288 Ark. 587, 708 S.W.2d 87 (Ark. 1986).

The following factors must be present before a false statement in an employment application will bar benefits: (1) the employee must have knowingly and willfully made a false representation as to his physical condition, (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring, and (3) there must have been a causal connection between the false representation and the injury. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988); James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996).

The commission's finding that employer failed to prove that it relied on false representations made by the employee when it decided to hire him was supported by substantial evidence in that the employment application appeared to have been filled out by someone other than the employee some four months after he was hired. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996).

Healing Period.

Recurring symptoms may give rise to a subsequent healing period, after the original one has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).

Determination that employee's healing period had not ended was supported by substantial evidence. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).

Idiopathic Fall.

The effects of an idiopathic fall may be compensable if the employment places the employee in a position increasing the dangerous effects of such a fall. Nu-Way Laundry & Cleaners v. Palmer, 12 Ark. App. 31, 670 S.W.2d 464 (1984).

When a truly unexplained fall occurs while the employee is on the job and performing the duties of his employment, the injury resulting therefrom is compensable. Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987).

Injury Arising out of and in Course of Employment.

Before a widow can recover, it must appear that her husband's death arose out of his employment and also in the course of his employment. Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960).

Injury held not to arise out of and in course of employment. Moseley v. Temple, 231 Ark. 502, 330 S.W.2d 719 (1960); Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960); Williams v. Central Flying Serv., Inc., 236 Ark. 709, 368 S.W.2d 87 (1963); Willis v. Dumas, 250 Ark. 496, 466 S.W.2d 268 (1971); Foster v. Johnson, 264 Ark. 894, 576 S.W.2d 187 (1979).

Independent contractors were not constituted employees by a clause in the contract which provided the alleged employer should carry Workers' Compensation insurance on them and deduct their pro rata share of the premiums from their remuneration. Hughes v. Hooker Bros., 237 Ark. 544, 374 S.W.2d 355 (1964).

Injuries suffered by employees, who at the precise moment of the accident are not acting within the course and scope of their employment may be compensated if their temporary departure from the job is not great. Coleman's Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978).

Injury held to have occurred in the course of employment. Coleman's Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978); Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (1980); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Preway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987).

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).

An employer's obligation under workers' compensation may extend beyond termination when the activity causing injury is a normal and reasonable incident of the employment relationship. Jones v. City of Imboden, 39 Ark. App. 19, 832 S.W.2d 866 (1992).

An injury may be found to have occurred “in the course of employment” despite the fact that the claimant had been discharged prior to the work-related assault. Jones v. City of Imboden, 39 Ark. App. 19, 832 S.W.2d 866 (1992).

The phrase “arising out of the employment” refers to the origin or cause of the accident. Tbe phrase “in the course of” the employment refers to the time, place and circumstances under which the injury occurs. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff'd, 313 Ark. 100, 852 S.W.2d 804 (1993).

—Causal Connection.

An accident arises “out of” the employment when there is a causal connection between the two; that is, when the accident results from a risk reasonably incident to the employment. Southland Corp. v. Hester, 253 Ark. 959, 490 S.W.2d 132 (1973).

Where second injury results from nonwork-related negligent conduct on the part of the claimant which effects an independent intervening cause, no liability can be placed upon the employer; where it occurs within the scope of the employment, the neglect of the claimant leading to his injury is of no consequence. The employer at the time of the injury is liable for all consequences of that injury without regard to the claimant's conduct. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

The mere fact that an assault occurs on an employer's parking lot or in close proximity to his place of employment does not establish a causal connection with the employment. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983).

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. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983); Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

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).

Causal connection held established. 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).

Causal connection held not established. Southland Corp. v. Hester, 253 Ark. 959, 490 S.W.2d 132 (1973); Hammer v. Intermed N.W., 270 Ark. 262, 603 S.W.2d 913 (1980); Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987); Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990).

Where it was clear that if it had not been for the stress placed on the employee at his workplace, there would have been no suicide, then there was no independent intervening cause breaking the chain of causation between the stress employee experienced as a result of his employment and his suicide, and the exclusion provided in subdivision (b)(2) did not apply. George W. Jackson Mental Health Ctr. v. Lambie, 49 Ark. App. 139, 898 S.W.2d 479 (1995).

Where there was no causal connection between injury and employment other than employee's own assertion that a fall occurred; commission's finding that employee was not credible was a permissible one and the Commission's opinion displayed a substantial basis for the denial of relief. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995), rev'd, 324 Ark. 21, 918 S.W.2d 158 (1996).

Employee held to have experienced an “unexplained fall,” a compensable injury. Little Rock Convention & Visitors Bureau v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997).

—Evidence.

Workers' compensation claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from, the employment. Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987).

Evidence sufficient to support finding that employee's psychological disorders were not causally connected to his compensable burn injury. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987).

Evidence sufficient to find causal connection between original injury and subsequent complication which resulted in a second healing period. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (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).

Because employee injured by a tornado while eating dinner was a resident employee, on call 24 hours a day, seven days a week, and one could reasonably expect this type of employee to, at some point, sit down to eat dinner, the commission's decision that the employee was injured while “in the course of” his employment was supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff'd, 313 Ark. 100, 852 S.W.2d 804 (1993).

Employee failed to prove that he sustained compensable injuries to his feet and to his back. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).

—Going to or from Work.

Injuries incurred while traveling to or from work held not to arise out of employment. Dickinson v. Central Constr. Co., 233 Ark. 360, 344 S.W.2d 599 (1961); American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985).

The general rule is that injuries which occurred while an employee is going to or from work are not compensable since all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle, generally referred to as the “street risk doctrine.” Williams v. National Youth Corps in Sch. Programs, 269 Ark. 649, 600 S.W.2d 27 (Ct. App. 1980).

Injuries sustained while traveling to or from work held compensable. Williams v. National Youth Corps in Sch. Programs, 269 Ark. 649, 600 S.W.2d 27 (Ct. App. 1980).

Injuries sustained by employees while going to and returning from their regular place of employment are not, as a general rule, deemed to arise out of and in the course of employment. American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985); Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995).

Although an exception to the going and coming rule may operate to place an employee traveling to or from work within the course of his employment, it does not follow that the employee's injury is therefore compensable, because the employee must still show that the injury arose out of his employment. Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990).

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 to injury incurred prior to July 1, 1993 (the effective date of the amendment of § 11-9-102(5)(B)(iii) (now § 11-9-102(4))), where 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).

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).

—Positional Risk.

Under the positional risk doctrine, 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. The only connection of the employment with the injury is that its obligations placed the employee in a particular place at the particular time when he is injured by some neutral force, “neutral” meaning neither personal to the claimant nor distinctly associated with the employment. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff'd, 313 Ark. 100, 852 S.W.2d 804 (1993).

A worker required to be on company property 24 hours a day, who was injured by a tornado while on company property eating dinner, was entitled to compensation for that injury, as the tornado constituted a neutral risk. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff'd, 313 Ark. 100, 852 S.W.2d 804 (1993).

—Preexisting Condition.

Preexisting disease or infirmity of an employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. Black v. Riverside Furn. Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982)Criticized byCox v. Nashville Livestock Com., 28 Ark. App. 138, 771 S.W.2d 786 (1989).

The aggravation of the symptoms of a preexisting heart condition was not compensable. Black v. Riverside Furn. Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982)Criticized byCox v. Nashville Livestock Com., 28 Ark. App. 138, 771 S.W.2d 786 (1989).

An award of workers' compensation benefits will be sustained where heart attack is shown to have been aggravated or precipitated by the employment; there is no requirement that in order for a heart attack to be compensable, it must be caused or brought on by some unusual exertion rather than by the employee's regular work. C.J. Horner Co. v. Stringfellow, 14 Ark. App. 138, 685 S.W.2d 533 (1985), aff'd, 286 Ark. 342, 691 S.W.2d 861 (Ark. 1985).

Where the requirement of a causal connection is not met, the commission did not err in finding employee's psychological disorders not compensable as an aggravation of a preexisting condition. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987).

Where injuries sustained while working for employer amounted to an aggravation, not a recurrence, of previous injury, employer was liable for the aggravation of the old injury. Hawkins Constr. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996), rev'd, 325 Ark. 133, 924 S.W.2d 789 (1996).

—Specific Diseases or Conditions.

An attack of angina pectoris which results in disability may constitute an injury giving rise to compensation if it arises out of and occurs in the course of employment; and a work-related disabling angina attack, although temporary, is a disability. Nashville Livestock Comm'n v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990).

Substantial evidence supported the determination that the claimant's carpal tunnel syndrome was not causally related to her employment where: (1) the claimant's supervisors testified that she worked no more than 30 minutes at a time on a production line; (2) the claimant first noticed a problem with her hands while she was a supervisor; (3) the claimant often played volleyball, racquetball, and walleyball; and (4) the claimant told a company nurse that she might have to stop playing volleyball and racquetball because her hands hurt, but she never told anyone that her injury was work-related. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998).

—Stress.

Evidence that employee took his own life because of job-related stress held sufficient, particularly where there was nothing in the record indicating any other possible reason for his suicide. George W. Jackson Mental Health Ctr. v. Lambie, 49 Ark. App. 139, 898 S.W.2d 479 (1995).

—Travel.

In situations where employee's work requires travel on his employer's business, Arkansas has adopted the traveling salesman doctrine. Arkansas Dep't of Health v. Huntley, 12 Ark. App. 287, 675 S.W.2d 845 (1984).

Injuries incurred by employee while traveling on employer's business held to be a natural and probable consequence or incident of her employment and to arise out of and in the course of employment. Arkansas Dep't of Health v. Huntley, 12 Ark. App. 287, 675 S.W.2d 845 (1984).

Inspections.

An insurer, under this section, assumes only the employer's liability to pay compensation and is not required to make safety inspections. Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967).

This chapter does not permit an employee's common-law action against a workers' compensation carrier for negligent safety inspections of the employer's premises, as such an action would be contrary to the purposes and policies underlying the chapter. Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985).

Insurance Coverage.

There is no statute which prohibits an employer and its insurer from excluding health care insurance benefits for injuries or illnesses covered by workers' compensation since, without such a clause, insureds might be allowed double recovery for certain medical or income disability expenses already paid for by workers' compensation; there is no reason why an insurance clause that precludes the prospects of double recovery of medical benefits would be against public policy. Atkins v. Pilot Life Ins. Co., 4 Ark. App. 257, 630 S.W.2d 50 (1982).

The employer is required by the state to carry insurance, and the state dictates the rates to be charged. Wal-Mart Stores, Inc. v. Crist, 664 F. Supp. 1242 (W.D. Ark. 1987), rev'd, 855 F.2d 1326 (8th Cir. Ark. 1988).

Obligations of an employee who negligently injured her employer could not arise under this chapter. Estate of Sodorff v. United S. Assurance Co., 980 F. Supp. 1004 (W.D. Ark. 1997).

Intent to Injure.

Where employer willfully assaulted employee, the fact that employee might have recovered under this chapter did not bar employee's action for damages. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).

The willful misconduct or willful intent to injure an employee in a work connected fight which will bar his recovery of workers' compensation for resulting injuries must be premeditated or deliberate and violent. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545 (1954).

Claimant held entitled to benefits for injuries suffered in work-related fight where no willful intent to injure was established. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545 (1954); Safeway Stores, Inc. v. McDowell, 2 Ark. App. 321, 621 S.W.2d 15 (1981); Welch's Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992).

For claimant's injury to be found noncompensable under subdivision (a)(2), claimant must have had a willful intention to injure himself or another or a willful intention to injure denoting premeditated or deliberate misconduct, rather than a sudden or impulsive act, and have acted with a physical force designed to inflict real injury. Ramirez v. Hudson Foods, Inc., 53 Ark. App. 49, 918 S.W.2d 207 (1996).

Intoxication.

Burden is on the employer to show that employee's death resulted solely from his intoxicated condition. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113 (1944) (decision under prior law); Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S.W.2d 91 (1952) (decision prior to 1976 amendment).

Evidence insufficient to show employee's intoxication caused injury. Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S.W.2d 91 (1952); Jones Truck Lines v. Letsch, 245 Ark. 982, 436 S.W.2d 282 (1969).

Reference to injuries caused solely by intoxication was not intended to include the effects of medication innocently taken upon the orders of a physician. Jones Truck Lines v. Letsch, 245 Ark. 982, 436 S.W.2d 282 (1969) (decision prior to 1976 amendment).

Evidence supported conclusion that employee's death was “solely occasioned by intoxication.” Goza v. Central Ark. Dev. Council, Inc., 254 Ark. 694, 496 S.W.2d 388 (1973) (decision prior to 1976 amendment).

Evidence supported finding that the claimant's injury was substantially occasioned by his intoxication. Country Pride v. Holly, 3 Ark. App. 216, 624 S.W.2d 443 (1981); Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982); Southwest Pipe & Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984).

Employer's knowledge of the claimant's propensity to consume alcohol did not estop the employer from raising the defense of intoxication. Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982).

Blood test which indicated that the claimant was intoxicated at the time of his accident held admissible. Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982).

Commission's finding that employer was not estopped to assert the defense of intoxication was supported by substantial evidence. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).

Multiple Employment.

Where joint employment occurs both employers are liable for workers' compensation. Williams v. National Youth Corps in Sch. Programs, 269 Ark. 649, 600 S.W.2d 27 (Ct. App. 1980).

Where there is a dual employment and the particular industry in which the injury occurs can be clearly identified, the employer in whose service the employee was acting at the time of his injury should be exclusively liable for the consequences of that injury. Great Cent. Ins. Co. v. Mel's Texaco, 8 Ark. App. 236, 651 S.W.2d 101 (1983).

Out-of-State Injury.

An Arkansas resident came under Arkansas Workers' Compensation Law, 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 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).

—Reasonableness of Activity.

In determining whether the claimant's horseback riding was unreasonable under the circumstances, and thus, precluded recovery, Commission should have considered the claimant's knowledge of his condition where the claimant, after horseback riding, suffered a second injury from fainting caused by pain from his work-related injury. Lunsford v. Rich Mt. Elec. Co-op, 33 Ark. App. 66, 800 S.W.2d 732 (1990).

In determining whether recovery for second injury caused by pain from work related injury was precluded by claimant's horseback riding, claimant's belief that the activity had been cleared by his doctor should be considered in determining whether claimant's horseback riding was unreasonable “under the circumstances”. Lunsford v. Rich Mt. Elec. Co-op, 33 Ark. App. 66, 800 S.W.2d 732 (1990).

Third-Party Claim.

In matters involving workers' compensation benefits the employer shall be immune from third-party tortfeasors claim. 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).

Cited: Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Green v. Jacuzzi Bros., 269 Ark. 733, 600 S.W.2d 448 (Ct. App. 1980); Kempner's & Dodson Ins. Co. v. Hall, 7 Ark. App. 181, 646 S.W.2d 31 (1983); New Hampshire Ins. Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984); Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59 (1985); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); Sloat Chiropractic Clinic v. Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Case Notes

Constitutionality.

Provision making prime contractor liable for compensation to employees of subcontractor who has failed to secure compensation coverage as required by law is valid. Corban v. Skelly Oil Co., 256 F.2d 775 (5th Cir. 1958).

Purpose.

The primary purpose is to protect the employees of subcontractors who are not financially responsible, and to prevent employers from relieving themselves from liability by doing through independent contractors what they would otherwise do through direct employees. Liggett Constr. Co. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982).

This section is not for the benefit of the subcontractor, but rather for the unprotected subcontractor's employees. The same person can not be both the subcontractor and the injured employee, because to so hold ignores both the purpose of this section and its various provisions. Employers Ins. of Wausau v. Polar Express, Inc., 780 F. Supp. 610 (W.D. Ark. 1991).

Applicability.

Although an injured worker alleged that a healthcare company was a prime contractor for purposes of subsection (a) of this section, such a finding by the court would have afforded him no relief since he had elected to sue in tort under § 11-9-105(b), and subsection (a), which made a prime contractor liable for compensation to employees of subcontractors who failed to secure compensation, was a workers' compensation statute that governed claims filed with the Arkansas Workers' Compensation Commission. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Contractor's Liability.

Commission erred in disregarding the corporate entity of the subcontractor in determining whether a prime contractor should be liable for compensation to an injured employee of the subcontractor. Thomas v. Southside Contractors, 260 Ark. 694, 543 S.W.2d 917 (1976).

Evidence sufficient to find general contractor was liable for benefits to employee of subcontractor. Liggett Constr. Co. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982).

Subcontractor's employee held to have been injured in the performance of work for the general contractor. D & M Constr. Co. v. Archer, 14 Ark. App. 198, 686 S.W.2d 799 (1985).

When the subcontractor carries no compensation insurance, the prime contractor is made a statutory employer and has the same immunity as a regular employer. Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986).

The liability arising on the part of a prime contractor would not extend to subcontractors under this section, but would be limited to the subcontractor's employees. Estate of Sodorff v. United S. Assurance Co., 980 F. Supp. 1004 (W.D. Ark. 1997).

Where claimant was an employee of his brother, an uninsured subcontractor of the roofing company, the roofing company was the prime contractor liable for workers' compensation benefits to claimant; the fact that claimant's brother may have been an independent contractor for the roofing company did not preclude him from also being a subcontractor of the roofing company for purposes of this section. Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005).

Where injured worker was employed by an uninsured subcontractor, appellant contractor, as the “prime contractor”, was ordered to pay workers' compensation benefits to the worker; substantial evidence supported the Arkansas Workers' Compensation Commission's finding that the necessary links existed between the work the injured worker was performing and the contract with the Arkansas State Highway Commission in that all subcontractors were performing services that arose from this contract and the contractor was the only one with an obligation to a third party. Jones Bros. v. Journagan Constr. Co., 92 Ark. App. 406, 214 S.W.3d 870 (2005), modified, Jones Bros., Inc. v. Whitlock, 366 Ark. 254, 234 S.W.3d 864 (2006).

Stipulations and testimony, particularly the fact that general contractor had subcontracted the roofing on a house to a roofing subcontractor, along with the court's interpretation of the terms “prime contractor” and “general contractor,” constituted substantial evidence that the general contractor was the prime contractor and, thus, was statutorily liable for the subcontractor's employee's injuries. Musson Custom Bldg., Inc. v. Valladares, 93 Ark. App. 490, 222 S.W.3d 214 (2006).

Where contractor hired a third party, who in turn hired a subcontractor to perform work on a highway project where employee was injured, the contractor was liable to subcontractor's injured employee because of subcontractor's failure to pay insurance. Jones Bros., Inc. v. Whitlock, 366 Ark. 254, 234 S.W.3d 864 (2006).

Contractor-Subcontractor Relationship.

Contractor-subcontractor relationship not established. Andrews v. Gross & Janes Tie Co., 211 Ark. 999, 204 S.W.2d 783 (1947) (decision under prior law); Lofton v. Bryan, 237 Ark. 376, 373 S.W.2d 145 (1963); Eagle Star Ins. Co. v. Deal, 337 F. Supp. 1264 (W.D. Ark. 1972), rev'd, 474 F.2d 1216 (8th Cir. 1973).

Contractor-subcontractor relationship established. Brothers v. Dierks Lumber & Coal Co., 217 Ark. 632, 232 S.W.2d 646 (1950) (decision under prior law); Huffstettler v. Lion Oil Co., 110 F. Supp. 222 (W.D. Ark.), aff'd, 208 F.2d 549 (8th Cir. 1953); Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972) (decision under prior law) D & M Constr. Co. v. Archer, 14 Ark. App. 198, 686 S.W.2d 799 (1985).

Before an independent contractor can be found a “subcontractor” within the meaning of this section, it must first be established that the one sought to be held liable as “prime contractor” was contractually obligated to a third person for the work being performed by the independent contractor. Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).

Where the evidence showed that owners of property upon which a house was being built were not contractually bound to any third person in connection with the work being done by the independent contractor and his injured employee, and that the owners exercised no control over either of them, the owners of the property could not be held liable as the prime contractors. Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).

The duties of a general contractor to a subcontractor's employees are analogous to those of an owner of the premises, and include the duty to exercise ordinary care, the duty to warn of unusually hazardous conditions that might affect the welfare of the subcontractor's employees, and if the general contractor begins to perform certain duties or activities and then negligently fails to perform or performs in a negligent manner, he may also be held liable. Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992).

A general contractor's liability can be likened to the “business invitee” concept: when a general contractor invites a subcontractor onto a job site, the general contractor has a duty to exercise ordinary care for the welfare of the subcontractor's employees. Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992).

Where the citizens of the northeast portion of county assessed a tax against themselves in order to secure dependable emergency ambulance service, and the county only served as a conduit to collect the tax and turn it over to the service on an as-needed basis, the subcontractor-prime contractor provision of subsection (a) was not applicable. Sloan v. Voluntary Ambulance Serv., 37 Ark. App. 138, 826 S.W.2d 296 (1992).

Contractor was liable for workers' compensation benefits to claimant, as an employee of an uninsured subcontractor, where the contractor subcontracted out a roofing job, and that subcontractor contracted out the job to another roofer, who employed the claimant. Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005).

Arkansas Workers' Compensation Commission erred in holding that an employer, a registered carrier, was a transportation broker's uninsured subcontractor and that the broker was an injured employee's statutory employer under § 11-9-402(a) where the broker was not obligated to transport any loads for a shipper; hence, it had no work to “farm out” to the employer. Transplace Stuttgart, Inc. v. Carter, 98 Ark. App. 418, 255 S.W.3d 878 (2007).

Employment Relationship.

The legislature has created the relationship of employer and employee between the employee of a subcontractor who has not secured compensation and the prime contractor; however, this statutory relationship does not exist when the employee has received compensation from the subcontractor and he may proceed against the prime contractor on a common law action of tort as against a third party. Baldwin Co. v. Maner, 224 Ark. 348, 273 S.W.2d 28 (1954), superseded by statute as stated in, Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Under Workers' Compensation Law of Arkansas, 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).

Whether a claimant was an employee of a subcontractor was a question of fact to be determined by the Workers' Compensation Commission, and that finding on appeal would be given the same effect as the verdict of a jury. Benefield Real Estate v. Mitchell, 269 Ark. 607, 599 S.W.2d 445 (Ct. App. 1980).

Evidence supported commission's finding that claimant was an employee of subcontractor and was entitled to benefits. Benefield Real Estate v. Mitchell, 269 Ark. 607, 599 S.W.2d 445 (Ct. App. 1980).

The determination of whether, at the time of injury, a person was an employee or an independent contractor is a factual one and the Workers' Compensation Commission is required to follow a liberal approach, resolving doubts in favor of employment status for the worker and a reviewing court will view the evidence in the light most favorable to the Commission's decision. D & M Constr. Co. v. Archer, 14 Ark. App. 198, 686 S.W.2d 799 (1985).

Arkansas Workers' Compensation Commission found that Arkansas Forestry Commission (AFC) was not obligated to a third-party for the business's proper completion of a state contract and, thus, the AFC was not a prime contractor; the Commission found that the business was a contractor to the AFC, but the AFC was a contractor to no one. Riddell Flying Serv. v. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005).

Fact that the truck driver had obtained a certificate of non-coverage under this section did not preclude the Arkansas Workers Compensation Commission from concluding that the driver was an employee of the company for purposes of determining entitlement to workers' compensation benefits; the Commission based its conclusion of an employment relationship upon the incidents of control exerted by the company, including ownership and maintenance of the truck and the ability to order the employee to a pick-up location at any time. Cloverleaf Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005).

Substantial evidence supported the Arkansas Workers' Compensation Commission's decision that a claimant's relationship with a contractor was that of an independent contractor because that was the relationship both parties agreed to before the work began and, as such, the contractor was not liable for the claimant's injuries, pursuant to subdivision (c)(1)(A) of this section; the claimant acknowledged his intent in the beginning of the work relationship with the contractor was that no taxes would be withheld from his pay and the claimant would not be covered by workers' compensation insurance. Woodmancy v. Framco, Inc., 2011 Ark. App. 785, 387 S.W.3d 286 (2011).

Estoppel.

Corporation which agrees to furnish workers' compensation coverage to subcontractor and his employees is estopped to deny that subcontractor is entitled to benefits. Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S.W.2d 270 (1963).

In an action by carrier of workers' compensation insurance of a prime contractor against a subcontractor to recover amounts paid to an injured employee of the subcontractor, the carrier may be barred by estoppel where insurance premium has been paid or it was carrier's fault that it had not been paid. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W.2d 558 (1970).

Carrier was estopped from seeking to recover from subcontractor for benefits paid to the subcontractor's injured employee, even though it was not established that the carrier received and retained premiums withheld from subcontractor's payment. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W.2d 558 (1970).

Where the insured “employer's” liability is based upon estoppel, or other equitable considerations, the estoppel will not automatically apply to an insurance carrier whose liability is to be determined by this chapter. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W.2d 558 (1970).

Where there was no proof that claimant knew that the subcontractor's compensation insurance policy had been canceled at the time he discussed a subcontract for work with prime contractor, claimant was not estopped to assert liability on the part of prime contractor. Thomas v. Southside Contractors, 260 Ark. 694, 543 S.W.2d 917 (1976).

Foreign Law.

Employee who had received Workers' Compensation benefits from another state was not precluded against third party responsible for accident in Arkansas even though other state's workers' compensation statutes provided that the provisions were exclusive. Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804 (1955).

Insurance Coverage.

Agreement executed after workers' compensation policy to the effect that policy would cover all employees, including employees of any contractor or subcontractor engaged by insured, who had not provided for compensation coverage of their operations, related back to the effective date of the policy and covered employees of contractor as effectively as if specifically mentioned therein. Thomas Bros. Lumber Co. v. Hill, 204 Ark. 976, 166 S.W.2d 3 (1942) (decision under prior law).

In the absence of certification of noncoverage, a subcontractor who is a sole proprietor or partner but does not insure himself is not necessarily statutorily deemed an employee and the prime contractor is not necessarily liable for his workers' compensation coverage; instead, it is necessary to determine whether such individual is a subcontractor, independent contractor, or, depending upon the right of control, an agent of the prime contractor that should be treated as an employee under the workers' compensation statutes. Aloha Pools & Spas, Inc. v. Employer's Ins., 342 Ark. 398, 39 S.W.3d 440 (2000).

Recovery from Subcontractor.

The statutory right of the carrier to recover from the subcontractor is not dependent upon the right of the prime contractor, but rather depends only upon the payment of the claim by the carrier, whose claim for recovery does not affect its liability to the injured employee. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W.2d 558 (1970).

Subsection (a) of this section refers to the prime contractor's liability to employees of the uninsured subcontractor, and subdivision (b)(1) refers to recovery from the subcontractor; thus, it was error to order recovery from a third party in the chain of hiring for a road project, instead of an uninsured subcontractor. Jones Bros., Inc. v. Whitlock, 366 Ark. 254, 234 S.W.3d 864 (2006).

Recovery under this section is not limited solely to amounts due that are lienable. Jones Bros., Inc. v. Whitlock, 366 Ark. 254, 234 S.W.3d 864 (2006).

Sole Proprietor Exemption.

Although two sole proprietors exempted themselves from the benefits of coverage under subdivision (a)(B)(i) of this section, they did not exempt their employees; under the clear language of subdivision (a)(B)(ii), a presumption of exemption did not extend to employees of the subcontractors. Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005).

Cited: Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S.W.2d 959 (1953); Hollingsworth v. Evans, 255 Ark. 387, 500 S.W.2d 382 (1973); Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W.2d 228 (1978); Employers Ins. of Wausau v. Polar Express, Inc., 780 F. Supp. 610 (W.D. Ark. 1991); Cheatham v. 100% Certain Underwriters at Lloyds, 783 F. Supp. 1174 (E.D. Ark. 1991); Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Case Notes

Credibility.

Under the facts of the case, the question of waiver of exemption was a credibility issue; credibility is a matter lying exclusively within the province of the Workers' Compensation Commission. Stewart v. Cosby-Parsons Quarter Horse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ct. App. 1980).

Notice.

Waiver was not ineffective as to claiming employees by reason of employer's failure to post the notices required by this section or to cover a particular employee with insurance. McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963).

Cited: Great Am. Indem. Co. v. Bailey, 221 Ark. 469, 254 S.W.2d 322 (1953); Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961); French v. Jonesboro Pub. Schs., 233 Ark. 879, 349 S.W.2d 670 (1961).

Case Notes

Exclusivity.

Even though no answer was filed, the allegation in the injured worker's complaint in circuit court that the employer “failed to provide workers' compensation benefits for his employees” did not establish as a matter of law that he failed to “secure the payment of compensation” for purposes of this section and the exception to exclusivity under § 11-9-105(b); the allegation failed to address whether the employer had a policy of workers' compensation insurance in effect at the time of the employee's injury. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

Insurance Coverage.

The employer is required by the state to carry insurance, and the state dictates the rates to be charged. Wal-Mart Stores, Inc. v. Crist, 664 F. Supp. 1242 (W.D. Ark. 1987), rev'd, 855 F.2d 1326 (8th Cir. Ark. 1988).

Mere fact of a freight lessor's, a freight carrier's, and a healthcare company's noncompliance with this section, in failing to secure the payment of workers' compensation, did not establish their negligence for purposes of § 11-9-105(b), because an injured truck driver, who sought damages for a work-related back injury, did not demonstrate that their failure to maintain insurance coverage caused his injury. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Multiple Carriers.

Where findings of fact by the commission were sufficient to show a series of traumatic injuries during the period of insurance by two carriers of insurance, the judgment of the commission in holding both carriers equally liable for the compensation award was fully justified. Employers' Cas. Co. v. United States Fid. & Guar. Co., 214 Ark. 40, 214 S.W.2d 774 (1948) (decision under prior law).

Cited: Jenkins v. Jenkins, 219 Ark. 547, 243 S.W.2d 646 (1951); French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); Agricultural Group-Compensation Self-Insurer Fund v. Polk County Circuit Court, 331 Ark. 24, 958 S.W.2d 531 (Ark. 1998); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Case Notes

Jurisdiction.

If commission has jurisdiction over alleged employer it also has jurisdiction over employer's insurance carrier. Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W.2d 386 (1948) (decision under prior law).

Tort Actions.

An insurer under this section stands in the shoes of the employer and is liable only for obligations of the employer under this chapter and cannot be sued as a third party tortfeasor for injuries to an employee. Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967).

Cited: Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Case Notes

Cited: Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Case Notes

Burden of Proof.

Where claimant testified that he never saw the required form posted anywhere on the employer's premises, it was incumbent on the employer to offer evidence to show that the required notice had been posted, and in the absence of such evidence employer was estopped from asserting the statute of limitations. Rider v. Julian Martin, Inc., 31 Ark. App. 144, 789 S.W.2d 743 (1990).

Workers' compensation claim was not time-barred even though it was filed more than two years after the date of the injury where the employer had told the employee he did not have workers' compensation insurance, the employer had actual notice of the injury on the date of the injury, and the employer's own testimony showed that he failed to post notice that he had subsequently obtained workers' compensation insurance or notify the employee of the same after the injury. Graves v. Hopper, 2018 Ark. App. 193, 547 S.W.3d 448 (2018).

Research References

Ark. L. Rev.

Cancellation of Insurance Contracts, 13 Ark. L. Rev. 360.

Workmen's Compensation — Contractually Required Insurance for Agricultural Laborers, 24 Ark. L. Rev. 385.

Case Notes

Construction.

Although this section is to be strictly construed to the end that employees will not be left without the protection of insurance coverage this rule should not be carried beyond the reason for its existence. Saint Paul Fire & Marine Ins. Co. v. Central Sur. & Ins. Corp., 234 Ark. 160, 350 S.W.2d 685 (1961).

Cancellation.

This section contains two substantive requirements for cancellation of insurance policy — that notice be given and that other insurance be procured. Saint Paul Fire & Marine Ins. Co. v. Central Sur. & Ins. Corp., 234 Ark. 160, 350 S.W.2d 685 (1961).

Cancellation of policy took effect when formal notice to the commission was given, where notice was given after procurement of other policy. Saint Paul Fire & Marine Ins. Co. v. Central Sur. & Ins. Corp., 234 Ark. 160, 350 S.W.2d 685 (1961).

Policy was in force until the commission approved the cancellation. Traders & Gen. Ins. Co. v. Henderson, 235 Ark. 896, 362 S.W.2d 671 (1962).

Subsection (b) of this section requires that one of two conditions precede an effective cancellation when due to nonpayment of premiums — that notice of cancellation be given to both the employer and the Workers' Compensation Commission, or that other insurance be procured within the notice period. St. Paul Fire & Marine Ins. Co. v. Southwestern Imp., Inc., 19 Ark. App. 239, 719 S.W.2d 708 (1986).

The notice of cancellation requirements of subsection (b) of this section are to be strictly construed and applied. St. Paul Fire & Marine Ins. Co. v. Southwestern Imp., Inc., 19 Ark. App. 239, 719 S.W.2d 708 (1986).

The notice sent the employer was ineffective to cancel the insurance policy where the insurer failed also to give notice to the Workers' Compensation Commission pursuant to subsection (b) of this section. St. Paul Fire & Marine Ins. Co. v. Southwestern Imp., Inc., 19 Ark. App. 239, 719 S.W.2d 708 (1986).

This section provides that notice of any cancellation should be sent to “the commission and to the employer”; the statute does not mention that any employee is to receive notice of the cancellation. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988).

An employee does not have a cause of action against a workers' compensation carrier for fraudulent cancellation of a policy. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988).

Evidence was sufficient for the jury to find that the insurance company properly cancelled the policy; a reasonable jury could have determined that January 15, 2006, was the effective cancellation date (as the notice of cancellation stated) because the notice was mailed more than 10 days earlier, as required by subdivision (b)(2)(B) of this section. Triple H Debris Removal, Inc. v. Companion Prop. & Cas. Ins. Co., 647 F.3d 780 (8th Cir. 2011).

Coverage.

An employer who conducts two wholly separate and distinct kinds of businesses can become a subscriber for workers' compensation as to one business without insuring his employees in the other business, but he cannot insure part of his employees of one business and not insure the remainder of his employees of that business. Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S.W.2d 889 (1947) (decision under prior law).

Where it was clear that the intention of the parties as to insurance coverage prior to renewal was to cover the partners, but the renewal policy issued did not include the members of the partnership, deceased partner's administratrix was entitled to have the policy reformed to include him. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961).

The language of subsection (c) is deliberately broad and is intended to cover the employer's “entire liability” to his employees where the employer has taken out a workers' compensation insurance policy. Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980); Arkansas Kraft Vendors v. Horton, 15 Ark. App. 123, 690 S.W.2d 370 (1985).

Substantial evidence existed in the record to support commission's finding that employer had a policy of workers' compensation in effect at the time of claimant's injury which covered claimant. Southern Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (1980).

Policy which was ambiguous as to who it covered would not be construed to provide coverage for injured employee. Arkansas Kraft Vendors v. Horton, 15 Ark. App. 123, 690 S.W.2d 370 (1985).

Evidence sufficient to find that policy provided coverage for the employer's entire liability for company and fulfilled the requirements of subsection (c). Arkansas Kraft Vendors v. Horton, 15 Ark. App. 123, 690 S.W.2d 370 (1985).

Jurisdiction.

Action to reform workers' compensation insurance policy was properly brought in chancery court rather than before Workers' Compensation Commission. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961).

Tort Actions.

An employer's insurer under this section had no greater liability than the insured employer and was not liable as a third-party tortfeasor for injuries to an employee alleged to have resulted from the failure of the insurer to perform safety engineering and inspection. Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967).

Cited: Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); City of Waldo v. Poetker, 3 Ark. App. 12, 621 S.W.2d 491 (1981); Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Case Notes

Applicability.

Insurer not immune under subsection (e) of this section where the injury occurred before July 1, 1993. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Private Right of Action.

The statute does not grant a claimant the right to bring a claim seeking to establish an employer as an extra-hazardous employer. Vittitow v. Central Maloney, 69 Ark. App. 176, 11 S.W.3d 12 (2000).

Research References

Ark. L. Notes.

Brill, Equity and the Restitutionary Remedies: Constructive Trust, Equitable Lien, and Subrogation, 1992 Ark. L. Notes 1.

Ark. L. Rev.

Workmen's Compensation-Benefit Award as Release of Third-Party Tortfeasor, 4 Ark. L. Rev. 252, 253, 254.

Rights and Liabilities of Principals in the Insurance Relationship — A Partial Survey, 5 Ark. L. Rev. 24.

Workmen's Compensation — Contribution and Indemnity — Employer's Liability to Third Party Tortfeasor, 8 Ark. L. Rev. 512.

Workmen's Compensation — Aggravation of Compensable Injury — Resulting from Medical Treatment, 14 Ark. L. Rev. 117.

Insurance — Effect of Workmen's Compensation on Uninsured Motorist Coverage, 23 Ark. L. Rev. 498.

Uninsured Motorist Insurance Offset for Workmen's Compensation Benefits, 26 Ark. L. Rev. 570.

Comment, Is the Made-Whole Requirement More than We Bargained For?: From Franklin to Tallant — a Call to Reexamine the Made-Whole Doctrine in Arkansas, 60 Ark. L. Rev. 295.

Flavio Rios Guerrero v. OK Foods, Inc.: Advocating for a Broader Intentional-Tort Exception to the Workers' Compensation Exclusive-Remedy Doctrine, 61 Ark. L. Rev. 133.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Dobson, Workers' Compensation, 8 U. Ark. Little Rock L.J. 225.

Notes, Workers' Compensation — Supervisory Employees Are Immune From Tort Actions, 8 U. Ark. Little Rock L.J. 523.

Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.

U. Ark. Little Rock. L. Rev.

Annual Survey of Case Law, Employment Law, 28 U. Ark. Little Rock L. Rev. 732.

Case Notes

In General.

This chapter does not give or create a cause of action against a third party causing a compensable injury to the employee but only makes it plain that the common law remedy as the employee already had against tortfeasors prior to the enactment of the chapter was fully preserved and left unchanged when the tortfeasor is other than the employer. Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969).

This section provides that, even though an employee draws worker's compensation benefits, he is not precluded from making a separate claim or maintaining a separate cause of action against a third party causing the injuries. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

This section provides two methods for pursuing a third-party claim or cause of action: the employee may pursue the claim and make a recovery or, if he chooses not to do so, the employer or carrier may do so. In either event, the employee is to receive at least one third of the amount received, calculated after payment of costs of collection, and the employer or carrier, if there is enough remaining, is to be reimbursed for the workers' compensation benefits paid. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

This section creates one cause of action, but two separate claims, one belonging to the employee and the other belonging to the employer or insurance carrier for the employer. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

Where a third-party tort action was filed against a company based on the allegation that claimant was a special employee of the company, in granting a writ of prohibition the Court implicitly held that the special employee issue was to be decided by the Arkansas Workers' Compensation Commission as it had exclusive, original jurisdiction to determine the applicability of the Arkansas Workers' Compensation Act. Nucor Corp. v. Rhine, 366 Ark. 550, 237 S.W.3d 52 (2006).

Construction.

This section is vague and ambiguous and, therefore, the courts will consider the decisions of other jurisdictions to determine its real meaning. Boulden v. Herring, 126 F. Supp. 885 (W.D. Ark. 1954), aff'd, 227 F.2d 303 (8th Cir. Ark. 1955).

Subdivision (a)(1) of this section does not grant the employer and carrier any right of recovery but, instead, only provides a means for securing the right given by other sections of this section. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

When subdivision (a)(1) of this section gives a carrier the right to intervene, the carrier may intervene as a matter of right under ARCP 24(a). Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Applicability.

This section does not apply to suits brought under the Wrongful Death Act, § 16-62-102. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

Acceptance of workers' compensation payments pursuant to this chapter does not mean that Arkansas automatically has the most significant relationship in determining the procedures of third-party tort settlement; acceptance of workers' compensation payments from a state does not mean that the parties made an election to accept the procedures of third-party settlement pursuant to that state's law. Simpson v. Liberty Mut. Ins. Co., 28 F.3d 763 (8th Cir. 1994).

Compensation and Tort Claims Separate.

The recovery of a claim for compensation does not affect the employee's right to maintain a tort action against any third person responsible for the injury whether the act of the third person be willful or merely negligent. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950); Baldwin Co. v. Maner, 224 Ark. 348, 273 S.W.2d 28 (1954), superseded by statute as stated in, Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Where administrator of deceased worker had cause of action for wrongful death against third-party tortfeasor, his cause of action and that of compensation carrier of employer for reimbursement for death benefits paid were separate causes. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954).

Employee who had received workers' compensation benefits in another state was not precluded against third party responsible for accident in Arkansas even though the other state's workers' compensation law provided that employee would be conclusively presumed to have elected to accept its provisions unless prior to the accident he had filed with compensation commission a written notice that he elected to reject the other state's law. Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804 (1955).

Fact that person has been compensated to some extent through this chapter would not benefit defendant so as to reduce the damages in the tort action. Swindle v. Thornton, 229 Ark. 437, 316 S.W.2d 202 (1958).

The making of a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a fellow employee whose negligence caused the accident. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).

Workers' Compensation Commission and trial court erred in refusing to consider claim on ground that the accident happened in another state and that state's law was controlling as to allowance of benefits, as recovery in tort from third party for such injury does not bar recovery of workers' compensation in Arkansas, although law of other state forbids such recovery. Gentry v. Jett, 235 Ark. 20, 356 S.W.2d 736 (1962).

Plaintiff's recovery from the insurer was not subject to reduction by the amount of workers' compensation paid plaintiff by his employer, but the employer was entitled to the amount so paid by him out of plaintiff's recovery. Jones v. Morrison, 284 F. Supp. 1016 (W.D. Ark. 1968).

Where employee voluntarily refunded compensation amounts prior to bringing personal injury claim, the refunded amounts belonged to the employee and not to the carrier and employee was entitled to them even though period of limitations for compensation claims had expired. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).

Under this section, the receipt by plaintiff of workers' compensation did not affect her right to recover full compensation from the third-party defendant. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971).

The statement in Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954), that this section recognizes separate causes of action in the compensation carrier, should not be taken to mean that the single cause of action against the tortfeasor might be split, for that statement relates to the separtate rights of the beneficiary and carrier to institute the action against the tortfeasor. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972).

Costs of Collection.

Subdivision (a)(2)(A) does not require a compensation carrier in all instances to participate in the payment of reasonable costs of collection of a personal injury claim, including attorney's fees; rather, this section provides only that reasonable costs of collection shall first be deducted from the gross amount received, before the net amount is allocated between the claimant and subrogee. The statute clearly does not provide for splitting of the gross sum in order to make a pro rata allocation of the costs of collection from both the claimant and the insurance carrier. Public Employee Claims Div. v. Chitwood, 324 Ark. 30, 918 S.W.2d 163 (1996).

—In General.

The existence of an alleged contract between employee and employer's insurance carrier calling for a contribution by the carrier, as part of the costs of collection of one third of the amount the carrier was entitled to receive in the settlement was a matter over which commission had no jurisdiction. Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W.2d 849 (1957).

—Attorney's Fees.

In a suit by an employee against a third-party tortfeasor, the employee's attorney's fees are to be deducted from the total recovered before an employer's insurer recovers for past and future workers' compensation payments, even though the insurer admitted liability where there is a contested case. Boulden v. Herring, 126 F. Supp. 885 (W.D. Ark. 1954), aff'd, 227 F.2d 303 (8th Cir. Ark. 1955).

Attorney for administrator of deceased worker, where successful in suit against third-party tortfeasor, was not only entitled to contingent fee on the one-third share of administrator but on the two-thirds share of the compensation carrier who intervened in action in order to claim its statutory share of proceeds as reimbursement of death benefits paid. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954).

Contingent fee contract between administrator of deceased worker's estate and attorney hired by him to bring wrongful death action was not binding upon compensation carrier who had intervened to claim share of recovery as reimbursement for death benefits paid. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954).

It is for the court and not the commission to determine reasonable compensation for legal services performed in suit against third-party tortfeasor although court, by agreement of parties, referred question of distribution of recovered funds to commission for determination. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954).

In action against third-party tortfeasor, beneficiary would be required to pay his attorney out of his share of the recovery in accordance with his contract with the attorney and subrogated insurance carrier would be required to pay its attorneys out of their share of the recovery in accordance with its contract. Saint Paul-Mercury Indem. Co. v. Lanza, 131 F. Supp. 684 (W.D. Ark. 1955), aff'd, 232 F.2d 747 (8th Cir. Ark. 1956).

Attorney's fees are not part of the “costs of collection” which are to be deducted before beneficiary's share of recovery against third-party tortfeasor is paid over. Saint Paul-Mercury Indem. Co. v. Lanza, 131 F. Supp. 684 (W.D. Ark. 1955), aff'd, 232 F.2d 747 (8th Cir. Ark. 1956).

In action against third-party tortfeasor, beneficiary had no power to reject services of attorneys of insurance carrier who was subrogated to rights of beneficiary to the extent of benefits paid by the carrier and fees of the attorneys were not deductible from beneficiary's portion of recovery in absence of express or implied contract between the attorneys and beneficiary. Saint Paul-Mercury Indem. Co. v. Lanza, 131 F. Supp. 684 (W.D. Ark. 1955), aff'd, 232 F.2d 747 (8th Cir. Ark. 1956).

Where employee and third party effected voluntary settlement without trial of claim arising out of injury to employee occasioned by act of third party, Workers' Compensation Commission had the right to approve allowance of employee's attorney's fee and other reasonable costs of collection. Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W.2d 849 (1957).

Employee was entitled to have the fee of his attorney deducted from the recovery as expense of collection before computing the carrier's lien on two-thirds of the recovery. Phillips v. Morton Frozen Foods, 313 F. Supp. 228 (E.D. Ark. 1970).

Where the employer employed its own attorney to pursue the estate of the third-party tortfeasor, the trial court did not commit error in refusing to allow attorney fees for the employee's attorney as costs of collection of the third-party claim under this section; the court should simply apportion the recovery, leaving each to pay his or her own attorney. Orintas v. Meadows, 17 Ark. App. 214, 706 S.W.2d 199 (1986).

Because attorney's contingency fee and costs were initially deducted from the full amount of the third-party judgment before either the injured employee or the workers' compensation insurance carrier were distributed their respective statutory awards under subdivision (a)(2), the insurance carrier effectively paid its proportionate share of attorney's fees in the employee's third-party action, and no additional attorney's fee was provided by law. Continental Cas. Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993).

Whether or not the cost of collection includes the fee for the employee's attorney on the entire settlement or recovery must be judged on the facts of each case and depends on whether or not the workers' compensation carrier has reached an agreement with the employee's attorney to represent its interest in the third-party action, whether the carrier has had its own attorney participate in the third-party action, or whether the carrier has sat back and allowed the employee's attorney to do all the work and either settle the case or proceed to trial, waiting until a sum is recovered by the employee's attorney before stepping in to take its subrogation amount without any compensation to the attorney responsible for the recovery. Hatten v. Little Rock Dodge & Chrysler Ins. Corp., 47 Ark. App. 147, 886 S.W.2d 891 (1994).

Employer's or Carrier's Share of Recovery.

This section does not really give the employer or carrier two-thirds of the total net proceeds recovered; instead, it only gives them what they have paid, but under no circumstances shall they receive more than two-thirds of the net recovery irrespective of whether that fully reimburses them or not. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

Although the employee may “settle around” the insurance carrier by splitting off and putatively settling only his cause of action, he may not settle and get paid for both of the claims without expecting to reimburse the carrier for the portion of the settlement belonging to it. Simpson v. Liberty Mut. Ins. Co., 816 F. Supp. 1348 (W.D. Ark. 1993).

Where claimant failed to institute judicial proceedings prior to entering a settlement agreement with a third party, respondent compensation carrier was denied their statutory right to reasonable notice and an opportunity to intervene in an action in court and was, therefore, entitled to credit to the extent of the lien provided for in subdivision (a)(1). Wentworth v. Sparks Regional Medical Ctr., 58 Ark. App. 242, 950 S.W.2d 221 (1997).

Employer was not entitled to a lien or credit for the amounts it paid or would have to pay due to the claimant's injury that occurred within his scope of employment and involved the third party; claimant was not “make whole” by the settlement with the third party as is required before a lien or credit will be permitted. Phillip Morris USA v. James, 79 Ark. App. 72, 83 S.W.3d 441 (2002).

Immunity.

Arkansas Workers' Compensation Commission erred in concluding that it had jurisdiction over an employee's tort claims against a corporation and its owner, and in deciding that the corporation and owner were immune under § 11-9-105(a) because there was no employment relationship between the employee and the corporation and owner. Johnson v. Ark. Steel Erectors, 2009 Ark. App. 755, 350 S.W.3d 801 (2009).

Indemnity.

In the absence of a contract for indemnity running in favor of the third party, this section controls and negligent third-party tortfeasor is not entitled to indemnity or contribution from a negligent employer where their concurrent negligence has produced the injury or death of the employee. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Even in the absence of an express contract for indemnity, a third party will have indemnity from a negligent employer where the liability that has been imposed upon the third party is purely vicarious and without fault on his part. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Where there is no contract at all, much less an express contract of indemnity, the parties are nothing more than joint tortfeasors, and the employer is immune from any claim of contribution or indemnity. Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988).

Intervention.

Neither the employer nor its insurance carrier is admitting liability when it intervenes in a third-party action under this section. By intervening, they are merely preserving their right to a lien of two-thirds of the proceeds paid to the employee-claimant as a credit against their compensation exposure. Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986).

Where the employee has made a claim under this chapter and the employer or carrier has had reasonable notice and an opportunity to join in a third-party action, the employer and its carrier must intervene in a third-party action in order to have a right to a credit, whether or not the liability of the employer or the carrier has been determined. Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986).

Employer had an unconditional right to intervene in its injured employees' suit against a company the employees were working for as independent contractors, and it was error for the trial court to have denied the employer that right where the right to intervene to protect subrogation rights did not require the default judgment against the employer to have been set aside; however, although subdivision (a)(1)(A) of this section entitled the employer to reasonable notice to join in the action to protect only its subrogation right, it did not entitle the employer to reasonable notice to join in the action to protect its interest under the indemnification and hold harmless agreement. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004).

Joinder.

Where workers' compensation insurance carrier filed suit pursuant to this section against a third-party tortfeasor without joining the workers' compensation beneficiaries, who were necessary parties, the court properly sustained demurrer on basis that carrier lacked the legal capacity to sue but committed reversible error when it refused the carrier the opportunity to amend its complaint following dismissal of the complaint. United States Fid. & Guar. Co. v. Glass, 261 Ark. 45, 545 S.W.2d 924 (1977).

Jurisdiction.

The existence of an alleged contract between employee and employer's insurance carrier calling for a contribution by the carrier, as part of the costs of collection of one third of the amount the carrier was entitled to receive in the settlement was a matter over which commission had no jurisdiction. Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W.2d 849 (1957).

A circuit court had subject matter jurisdiction to award payment to an insurance carrier and to determine what constituted compensation under the Workers' Compensation Act pursuant to this section. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997).

Liability.

—In General.

Where an insurer paid workers' compensation payments to an employee while alive but delayed payments after death only to get a report from their doctor as to the cause of death, the insurer admitted liability under this section. Boulden v. Herring, 126 F. Supp. 885 (W.D. Ark. 1954), aff'd, 227 F.2d 303 (8th Cir. Ark. 1955).

Insurer was liable as a third-party tortfeasor to a worker alleged to have been injured as the result of failure of insurer to perform safety engineering and inspection. Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967).

An employee may be liable as a third-party tortfeasor in a workers' compensation case. Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969).

Evidence insufficient to find contractor or subcontractor liable as third-party tortfeasors for injuries sustained by employee of sub-subcontractor. Kennedy v. United States Constr. Co., 545 F.2d 81 (8th Cir. 1976).

Subject to a few narrow exceptions, an employer is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

—Supervisors.

Liability on the basis of a willful and malicious act by an employer's supervisor will not render the employer liable to the employee in tort. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

Supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe place to work. Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (Ark. 1987); Barnes v. Wilkiewicz, 301 Ark. 175, 783 S.W.2d 36 (1990).

Lien.

Plaintiff was limited to only one recovery for all damages and he could not, by electing to sue only for mental pain and suffering and disfigurement, defeat the lien of the insurance carrier on recovery. Barth v. Liberty Mut. Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948) (decision under prior law).

Since a manner and method of perfecting the employer's lien on the proceeds is provided, the third-party tortfeasor should have every right to proceed according to the common law as if no employer were involved until such time as the lien is perfected. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971)Limited byTravelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

When an insured recovered on a tort claim from a third party by way of settlement, the workers' compensation carrier was entitled to an amount up to two-thirds of the amount recovered, but was not entitled to a lien against recovery of uninsured motorist proceeds. Courson v. Maryland Cas. Co., 475 F.2d 1030 (8th Cir. 1973).

Where deceased employee's parents bring suit for wrongful death and are neither dependents of the employee nor compensation beneficiaries, then neither the employer nor the insurance carrier has a lien on the moneys recovered from tortfeasor. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

Where the settlement of an injured employee with a third-party tortfeasor provided that the release given by the employee would not affect the subrogation rights of the employer's compensation carrier, the compensation carrier was not entitled to a lien upon the proceeds of the settlement. St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967).

The employer and its insurer waive their right to claim a lien or credit against the proceeds from a settlement reached by the employee and a third-party tortfeasor by failing to intervene in the third-party action, notwithstanding the absence of approval by the Workers' Compensation Commission or the court, or the preservation of their subrogation rights. John Garner Meats v. Ault, 38 Ark. App. 111, 828 S.W.2d 866 (1992).

This section provides not only for the intervening carrier's lien upon proceeds received in an action against a third party, but also spells out how the carrier's entitlement shall be computed. Public Employee Claims Div. v. Chitwood, 324 Ark. 30, 918 S.W.2d 163 (1996).

An insurance carrier was entitled to a statutory lien on sums recovered by a claimant from a third-party tortfeasor. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997).

An insurer-carrier's lien right against an insured's settlement with a third-party defendant is not necessarily “absolute”; rather, the settlement is subject to a court's approval after the carrier has been afforded adequate opportunity to be heard. General Accident Ins. Co. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000).

In an action arising from a fatal automobile accident, the trial court did not err in refusing to enforce the lien right of the decedent's employer's workers's compensation carrier on the ground that the decedent's beneficiaries and survivors were not made whole by a settlement of the action. General Accident Ins. Co. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000).

Payment of Claims.

Trial court's dismissal of claim against insurers who had already paid workers' compensation benefits with respect to claim was proper. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987).

Recovery Based on Settlement.

Trial court erred in finding that the Public Employee Claims Division (PECD), which had paid workers' compensation to the employee, was only entitled to two-thirds of the deposited funds instead of the net proceeds recovered in the settlement of the employee's negligence action against a third party; the record contained no reference to an agreement by which PECD agreed to limit its recovery to a portion of the deposited funds, and there was no reason on the record before the appellate court that PECD's recovery should be limited to an amount calculated from the deposited sum as opposed to the entire settlement as provided in this section. Public Emple. Claims Div. v. Clark, 2018 Ark. App. 215 (2018).

Release.

Release pursuant to consent judgment held to estop heirs covered by its terms but not spouse excluded from it. Jenkins v. Jenkins, 219 Ark. 547, 243 S.W.2d 646 (1951).

A release executed by an employee to a third-party tortfeasor before the filing of a workers' compensation claim was a defense to the employer's subsequent action against the tortfeasor brought pursuant to subsection (b). Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971)Limited byTravelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

Settlement of Claims.

In a suit by an employee against a third-party tortfeasor, where the employee's attorney obtained a settlement by the use of the federal pretrial rules with a judgment to bind the settlement, the reasonableness of the settlement and the attorney fees should have been determined by the federal trial court judge rather than the commission. Boulden v. Herring, 126 F. Supp. 885 (W.D. Ark. 1954), aff'd, 227 F.2d 303 (8th Cir. Ark. 1955).

A settlement by the use of the federal pretrial rules with a judgment to bind the settlement was a “contested case” under this section, which gives the attorney's fees priority over the workers' compensation insurer's subrogation claims. Boulden v. Herring, 126 F. Supp. 885 (W.D. Ark. 1954), aff'd, 227 F.2d 303 (8th Cir. Ark. 1955).

Word “settlement” means compromise settlement, and this section had no application where amount recovered was by judgment on verdict in suit against third-party tortfeasor and court approved deduction from proceeds. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W.2d 923 (1954).

For cases discussing apportionment of settlement in specific cases, see Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W.2d 849 (1957); Courson v. Maryland Cas. Co., 475 F.2d 1030 (8th Cir. 1973).

Since subsection (c) is not applicable to third-party tortfeasors, agreements between the injured employees and third persons need not be approved by the court. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971)Limited byTravelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

The purpose of subsection (c) is to permit the adjustment of controversies between the employee and employer and to require that settlements between them have the approval of either the court or the Workers' Compensation Commission to prevent an employee from compromising his claims through his tort action in a manner that would not be permitted under this chapter as by way of joint petition. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971)Limited byTravelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

Since the statutory purpose of this section is to protect the rights of both the compensation carrier and employee as between an employer or compensation carrier and employee, the proceeds of any compromise settlement of a tort claim is subject to the lien of the employer or the compensation carrier unless settlement has been approved by a court having jurisdiction or by Workers' Compensation Commission, after the carrier has been afforded adequate opportunity to be heard. Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

Compensation carrier that paid benefits to injured employee could not claim proceeds of a compromise settlement of a tort claim where it was conditioned upon and specifically recognized carrier's subrogation rights. Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (Ark. 1972).

Settlement held properly approved. Froman v. Southern Farm Bureau Cas. Ins. Co., 528 F.2d 24 (8th Cir. 1976).

Employee and third-party tortfeasor may settle “around” the employer and its liability carrier, despite this section, where the settlement preserves the right of employer's carrier to proceed against the tortfeasor. Bituminous Ins. Co. v. Georgia-Pacific Corp., 2 Ark. App. 245, 620 S.W.2d 304 (1981); New Hampshire Ins. Co. v. Keller, 3 Ark. App. 81, 622 S.W.2d 198 (1981).

An employee and a third party tortfeasor may settle the employee's claim and putatively leave the workers' compensation carrier to pursue its claim separately if it desires, at least so long as the settlement is made prior to judgment; to do so does not violate the rule against splitting of causes of action because the third party for whose benefit the rule was designed has agreed to it. Commercial Union Ins. Co. v. Suitt Constr. Co., 673 F. Supp. 320 (E.D. Ark. 1987), aff'd without op., 860 F.2d 1087 (8th Cir. Ark. 1988).

The Worker's Compensation statute does not afford the carrier the right to veto any compromise with a third party which is not to its liking. International Paper Co. v. Wilson, 34 Ark. App. 87, 805 S.W.2d 668 (1991).

The district court did not abuse its discretion when it approved the settlement between the employee and the corporation and denied the employer's motion for reconsideration because the Arkansas judicial doctrine under which the injured employee and the third party tortfeasor could settle around the employer's statutory lien provided that its subrogation rights were preserved was not undercut by the statutory amendments to the workers' compensation statute, and application of the settle around doctrine did not mean double recovery, prevent cooperation among the parties, or conflict with statutory policies. Smith v. Chemical Leaman Tank Lines, 285 F.3d 750 (8th Cir. 2002).

Subrogation.

A compensation carrier's subrogation extends to sums paid to the estate of a deceased employee under the uninsured motorist provision of his automobile policy and covers sums paid to dependents of the decedent as well as those paid to his estate. Boehler v. Insurance Co. of N. Am., 290 F. Supp. 867 (E.D. Ark. 1968). But see Heiss v. Aetna Casualty & Surety Co., 250 Ark. 474, 465 S.W.2d 699 (1971).

Under subsection (b) employer's workers' compensation insurance carrier was entitled to subrogation and was entitled to have its subrogation claim satisfied in whole or in part out of plaintiff's award. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971).

Workers' compensation carrier for employer of deceased employee who was killed within the scope of his employment when he was struck by uninsured motorist's vehicle was not entitled to subrogation against uninsured motorist benefits payable to decedent's administratrix. Travelers Ins. Co. v. National Farmers Union Property & Cas. Co., 252 Ark. 624, 480 S.W.2d 585 (1972).

The provisions of subsection (b) mean that the employer or insurance carrier is given the right to file with the court a notice of its lien to protect its subrogation rights but not the right to actively participate in the employee's action against the tortfeasor. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972).

Where insurance company was carrier of workers' compensation for employer of injured employee and insurer of third-party tortfeasor, insurance company was entitled to intervene in action by employee against tortfeasor and to recover the amount paid by it on workers' compensation claim. Burt v. Hartford Accident & Indem. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972).

The fact that deceased's parents, before judgment in a wrongful death action, settled with one of the tortfeasors did not preclude insurance carrier from suing the tortfeasor for claims paid by it. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

Surety subrogation rights were cut off on parents since they were neither dependents under subsection (a) nor beneficiaries under subsection (b) and had asked no medical or burial costs in settlement with tortfeasor just prior to trial. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

Compromise settlement between plaintiff and third-party defendants must be approved by court or commission, but the burden of proof is not entirely on third-party defendants where insurance carrier seeks right of subrogation against plaintiff's recovery. Liberty Mut. Ins. Co. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974).

Appropriate method of calculating compensation carrier's subrogation award was to deduct from gross settlement proceeds the cost of collection, and then to deduct from remainder any payment by tortfeasor's insurer of otherwise compensable medical expenses paid as part of settlement; figure thus obtained constitutes net proceeds of settlement and subrogation award should have been two-thirds of this amount. Washington County v. Ford, 21 Ark. App. 206, 730 S.W.2d 515 (1987).

A workers' compensation insurance carrier could not, as subrogee of an injured employee, sue the sole owner and officer of the employer as a third person for injuries sustained by the employee in the crash of an airplane piloted by the owner/officer. Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998).

Workers' compensation insurance carrier was not entitled to a subrogation lien against the settlement proceeds generated by a settlement between the injured employee and the doctor who inflicted nerve damage on the injured employee during surgery for a work-related injury as subrogation was only allowed where the settlement made the injured employee whole and the evidence showed that the settlement did not make the injured employee whole. Travelers Ins. Co. v. O'Hara, 350 Ark. 6, 84 S.W.3d 419 (2002).

Utility company and its insurer could not enforce its subrogation lien rights against its employee, a lineman, who was injured on the job as the lineman was not made whole by the recovery against the third-party tortfeasor. South Cent. Ark. Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003).

Allowing an insurer to assert its right to a lien against the tortfeasor as well as its insured served to further the intent of this section given that the insurer was denied its statutory right to either participate in an action against the tortfeasor brought by the insured or have notice of the settlement and an opportunity to be heard; the trial court was incorrect in finding that a release signed by the insured operated to bar any claims by the insurer against the tortfeasor, and it was immaterial that the insurer failed to give notice of its claim to the tortfeasor's insurance company. Liberty Mut. Ins. Co. v. Whitaker, 83 Ark. App. 412, 128 S.W.3d 473 (2003).

Federal district court's application of a Arkansas Supreme Court decision, which applied the made-whole doctrine to the statutory subrogation lien in subdivision (b)(1) of this section, was appropriate and imperative given the rule that, in diversity cases, federal courts must follow state law as announced by the highest court in the state. Caldwell v. TACC Corp., 423 F.3d 784 (8th Cir. 2005).

Arkansas Workers' Compensation Commission did not err in finding that employee had not been made whole by a $ 25,000 settlement from a tortfeasor in a car accident that resulted in a compensable injury based on the fact that some of the settlement reflected an award for pain and suffering and the amount of wage loss suffered; therefore, an employer and its insurer were not entitled to subrogation. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).

Appellate court reversed the Arkansas Workers' Compensation Commission's decision that an employer and the workers' compensation carrier were entitled to subrogation as the damages that employee received in a third party lawsuit after his attorney fees were paid were less than the actual jury verdict; thus, the employee had not been made whole. Yancey v. B&B Supply, 92 Ark. App. 348, 213 S.W.3d 657 (2005).

Third Party.

The term “third party” as used in this section can only mean a person or entity other than the first and second parties involved, and the first and second parties mean the injured employee and the employer or one liable under the section. Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969).

President and owner of corporation was the employer and was not “third party” under this section so as to permit tort suit against him at common law. Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969).

Provisions regarding “third party liability” to an injured worker show intent of General Assembly was to preclude insurer from independent liability. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987).

A working partner does not become a fellow employee, subject to third-party liability pursuant to this section, because of active involvement in the operations of the business. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993).

Insurance carrier was not entitled to bring a contract action against special employer under this section because this section only provides for a carrier liable for compensation to maintain an action in tort, not contract, and then only against a third party, not an employer. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

A non-supervisory coemployee is not a “third party” within the meaning of subdivision (a)(1)(A) of this section. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996).

Insurer and safety consultant were not immune under the exclusive remedy provision of § 11-9-105 because they were “third parties” as defined by this section. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Appellees were third parties under the Workers' Compensation Act and, thus, employee had a right to maintain an action against them in court despite the fact that he had already pursued a compensation claim against his employer; under subdivision (a)(1)(A) of this section, employee's pursuit of a claim for compensation against his or her employer does not effect employee's right to maintain an action in court against a third-party tortfeasor, and employee was not required to make a choice between enforcing his rights under the workers' compensation laws and his constitutional right to a jury trial against the third-party tortfeasor. Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005).

There was substantial evidence to support a finding that claimant was not a special employee of the company because, although the company's work was being performed when an injury was suffered, there was no contract for hire with the company and the employer was the one controlling the details of claimant's work. Nucor Corp. v. Rhine, 366 Ark. 550, 237 S.W.3d 52 (2006).

Underinsured Motorist Insurance.

An action by an employee against his employer's insurance carrier for underinsured motorist benefits was not barred by this section. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001).

Court denied summary judgment to the insurer of an employer in an employee's action for underinsured motorists benefits because the employee's settlement of the subrogation claim for less than would have been paid based on the amount paid by the tortfeasor was not an admission that the employee had been made whole and in no way waived her right to underinsured benefits or was inconsistent with her position that she had not been made whole, and there were disputed facts over whether the employee had been made whole under this section as there was no record evidence reflecting her damages. Colwell v. Shelter Mut. Ins. Co., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 16651 (E.D. Ark. Mar. 3, 2008).

Cited: Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955); Curran v. Security Ins. Co., 195 F. Supp. 562 (W.D. Ark.); Ragsdale v. Watson, 201 F. Supp. 495 (W.D. Ark. 1962); McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969); Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Holiday Inns of Am., Inc. v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973); Midwestern Distribution, Inc. v. Paris Motor Freight Lines, 563 F. Supp. 489 (E.D. Ark. 1983); Hill v. CGR Medical Corp., 9 Ark. App. 334, 660 S.W.2d 171 (1983); Hill v. CGR Medical Corp., 282 Ark. 35, 665 S.W.2d 274 (Ark. 1984); Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985); Lewis v. Crowe, 296 Ark. 175, 752 S.W.2d 280 (1988); Daniels v. Cravens, 297 Ark. 388, 761 S.W.2d 942 (1988); Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989); Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991); Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998); Northwest Ark. Area Agency on Aging v. Golmon, 70 Ark. App. 136, 15 S.W.3d 363 (2000); Phillips v. United States, 422 F.3d 709 (8th Cir. 2005).