Opinion
CLAIM NO. E904834
ORDER FILED MARCH 1, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE H. DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed and Remanded.
ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on September 20, 2000. In that opinion and order, the Administrative Law Judge found that the claimant's claim for benefits pursuant to Ark. Code Ann. § 11-9-505(a) is barred by the reasoning of the Arkansas Supreme Court in Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997). After conducting a de novo review of the entire record, we find the relevant facts in the present case sufficiently distinguishable from the relevant facts in Davis so that the Supreme Court's reasoning in Davis is not controlling. Therefore, we reverse and remand this case to the Administrative Law Judge for additional findings to determine what benefits, if any, that the claimant is entitled to under the test from Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).
In Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), the Arkansas Supreme Court addressed an issue as to when an injured worker has a cause of action under the Arkansas Civil Rights Act of 1993. In concluding that a terminated worker in that case had a remedy under the Arkansas Civil Rights Act, the Court concluded that the terminated worker had no cause of action in workers' compensation under Ark. Code Ann. § 11-9-505(a). In Davis, the worker sustained injuries and underwent surgeries in March and May of 1995, returned to work with restrictions, but was later terminated in August of 1995 when her physician assigned a 5% impairment rating with permanent restrictions. The terminated worker later ended any rights she may have had under workers' compensation laws through a joint petition filed with the Arkansas Worker's Compensation Commission on November 28, 1995. As a result of her termination, the terminated worker brought an action against her employer for discrimination based upon a disability under the Arkansas Civil Rights Act. As we understand the Supreme Court's analysis in Davis, the terminated worker in that case stated a cause of action under the Arkansas Civil Rights Act where (1) the terminated worker would not qualify for additional benefits under Ark. Code Ann. § 11-9-505 because she was no longer receiving any compensation benefits for her injury and where (2) the facts of the case do not describe a situation where the employer has refused to return the injured employee to work.
We find that the facts in the present case are distinguishable from the facts in Davis in two regards. First, the injured worker in Davis would no longer qualify for benefits under Section 505(a) because she had terminated her rights under workers' compensation law by joint petition. In the present case, there is no evidence that the claimant has ever signed a joint petition which would terminate his right to workers' compensation benefits. Second, the employer in Davis clearly returned the injured employee to work after the injury and surgeries, and terminated the employee only after the claimant received permanent work restrictions. The claimant in the present case asserts that his employer refused to return him to work within days after the injury, and therefore did not return him to work.
We find that the allegations of the claimant in the present case, if proven, would describe a refusal by the employer to return an employee to work, within the meaning of Ark. Code Ann. § 11-9-505(a). Consequently, for the reasons discussed herein, we remand this case to the Administrative Law Judge for additional findings applying the three part test in Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).
For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner
______________________________ SHELBY W. TURNER, Commissioner