{"id":"alj-H307524-2024-12-31","awcc_number":"H307524","decision_date":"2024-12-31","opinion_type":"alj","claimant_name":"Kanekalon Bishop","employer_name":"Ark. Dept. Of Correction","title":"BISHOP VS. ARK. DEPT. OF CORRECTION AWCC# H307524 December 31, 2024","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["wrist","back","carpal tunnel"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BISHOP_KANEKALON_H307524_20241231.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BISHOP_KANEKALON_H307524_20241231.pdf","text_length":31583,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H307524 \n \nKANEKALON BISHOP, EMPLOYEE       CLAIMANT \n \nARK. DEPT. OF CORRECTION, EMPLOYER         RESPONDENT \n     \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA         RESPONDENT \n \n \n \nOPINION FILED 31 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 3 October 2024 in Pine Bluff, Arkansas. \n \nCaldwell Law Firm, Mr. Andy Caldwell, appeared for the claimant. \n \nArkansas Insurance Department, Public Employee Claims Division, Mr. Charles \nMcLemore, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 3 October 2024 in Pine Bluff, Arkansas, \nafter the parties participated in a prehearing telephone conference on 25 June 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on 27 June 2024.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times. \n \n3.  The claimant’s average weekly wage at the time relevant to this claim was $512    \nper week, which would entitle her to Temporary Total Disability (TTD) benefits in \nthe amount of $341 per week and Permanent Partial Disability (PPD) benefits in \nthe amount of $256 per week.\n1\n \n \n \n1\n The Order stated that the parties would stipulate to the average weekly wage amount at \nthe hearing. That amount was agreed upon and read into the record at the beginning of the \nhearing. See TR at 9-10. \n\nK. BISHOP- H307524 \n2 \n \nThe Order also stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant is entitled to PPD benefits associated with her accepted \ncompensable workplace injury. \n \n2. Whether the claimant is entitled to the cost of an impairment evaluation \nperformed by Functional Testing Centers.\n2\n \n \n3. Whether the claimant is entitled to benefits under ACA § 11-9-505 related to the \ntime between her return-to-work authorization on 23 April 2024 and the \nreinstatement of her employment on 13 May 2024. \n \n4. Whether the claimant is entitled to an attorney’s fee. \nAll other ISSUES are reserved. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire \nresponses, were incorporated into the Prehearing Order. Those filings were admitted into \nthe record as Claimant’s Exhibit No 4 and Respondents’ Exhibit No 4, respectively. With \nrespect to the additional ISSUE of whether the claimant is entitled to the cost of the \nimpairment evaluation performed by Functional Testing Centers (FTC), the claimant \ncontends that the evaluation was reasonable and necessary. The respondents, on the other \nhand, contend that the evaluation was not reasonable or necessary in light of an earlier \nimpairment rating assigned by the claimant’s physician. They further contend that the \nevaluation was not authorized.\n3\n \n The claimant was the only WITNESS to testify at the hearing. \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (one index page and 81 pages of medical records), Claimant’s Exhibit No 2 (one \nindex page and six pages of non-medical records), Claimant's Exhibit No 3 (an invoice from \n \n2\n This issue was not listed in the Order, but it was added by the claimant without objection. \nThe evaluation was performed after the entry of the Prehearing Order. \n3\n See TR at 13-14. \n\nK. BISHOP- H307524 \n3 \n \nFunctional Testing Centers for an impairment rating evaluation), Claimant’s Exhibit No 4 \n(the claimant’s prehearing filing, which includes a notation from the claimant’s counsel on \nseeking the cost of an impairment evaluation from Functional Testing Centers), and \nClaimant’s Exhibit No 5 (various claim forms dated 24 September 2024); Respondents’ \nExhibit No 1 (a letter from the respondents’ counsel), Respondents’ Exhibit No 2 (one index \npage and 16 pages of non-medical records), Respondents’ Exhibit No 3 (one index page and \n52 pages of medical records), and Respondents’ Exhibit No 4 (the respondents’ prehearing \nfiling). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitness, observing her demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously-noted stipulations are accepted as fact. \n \n3. The respondents’ motions to introduce new evidence are denied. \n \n3. The claimant has met her burden on proving that she is entitled to PPD \nbenefits consistent with a one percent (1%) impairment rating to the whole \nbody. \n \n4.   The claimant has met her burden on proving that the impairment evaluation \nwas reasonably necessary treatment for which the respondents are \nresponsible for the cost. \n \n5. The claimant is entitled to an attorney’s fee on the indemnity benefits \nawarded herein. \n \nIII.  HEARING TESTIMONY  \nClaimant Ms. Kanekalon Bishop \n The claimant testified that at the time of her 9 November 2023 injury she was \nworking as an administrative assistant for facility maintenance at the Arkansas \n\nK. BISHOP- H307524 \n4 \n \nDepartment of Correction’s Maximum Security Unit in Tucker, Arkansas. She was injured \nwhen a remotely operated security gate slid closed and caught her arm (between her wrist \nand elbow) while she was passing something through the gate to another employee. Her \ninjury was accepted as compensable and benefits, including medical treatment and TTD \npayments, were provided. \n The claimant initially treated at a MedExpress clinic before being referred to \nOrthoArkansas, where she was seen by Dr. Michael Hussey, who then referred her to Dr. \nBrian Norton. While under the care of Dr. Norton, the claimant remained off work. On 13 \nMarch 2024, Dr. Norton performed surgery on the claimant’s right wrist. \n In January of 2024, the respondents terminated the claimant’s employment; but \nthey continued to provide benefits, including TTD payments and medical treatment, after \nher termination. The claimant testified that the reason for her termination was unclear, as \nshe remained in contact with the respondents while off work and undergoing authorized \ncare.  \n Dr. Norton released the claimant to return to work without restrictions on 23 April \n2024. She sought reinstatement with the respondents upon her release, but the \nrespondents did not return her to work until 13 May 2024. She did not have any other \nemployment or income in the time between her release to work and her reinstatement.  \n On 29 May 2024, the claimant followed up with Dr. Norton again; and he placed her \nat maximum medical improvement (MMI) without restrictions. Dr. Norton subsequently \nauthored a letter assigning the claimant a zero percent impairment rating. \n After the claimant received the zero percent impairment rating from Dr. Norton, she \npresented for an evaluation with FTC. She testified that they performed testing, including \nmeasuring her range of motion, that Dr. Norton did not do with her. FTC assigned the \nclaimant a one percent (1%) impairment rating. The rating has not been accepted or paid by \n\nK. BISHOP- H307524 \n5 \n \nthe respondents, as that issue is part of this litigation. Similarly, the cost of the evaluation \nwith FTC has not been paid by the respondents. \n The claimant testified that the respondents did not provide her a form AR-N at or \naround the time of her injury. She stated that she was eventually provided that form, along \nwith some other forms, on 24 September 2024. The claimant also testified that she \ncontinued to experience some trouble with her right arm and that her treatment with Dr. \nNorton was continuing for further evaluation of her complaints, including an EMG study \nthat was authorized and ordered but had not been conducted at the time of the hearing. \n On her cross examination, the claimant described having to reapply, interview, and \ncomplete paperwork for her reinstatement. The parties agreed that her eventual return to \nwork was on Monday, 13 May 2024. Since returning to work, she has been reassigned to \ndifferent areas, but has been doing essentially the same work as before her injury and for \nthe same pay. \n The claimant disagreed with the respondent counsel’s suggestion that she was \nreinstated on 3 May 2024. He cited an internal email from that day discussing her \nreinstatement [Resp. Ex. No 2 at 6]; but the claimant testified that she did not receive a call \ntelling her that she was to return to work until the Thursday before her first day back on \nMonday, May 13\nth\n.  \nMedical and Documentary Evidence \n The claimant first presented to a MedExpress clinic on the day of her 9 November \n2024 injury. She was assessed for pain and a contusion of her right arm and taken off work. \nShe followed up with MedExpress on 15 November 2023 and was referred for imaging and \nan orthopedic consult. \n At OrthoArkansas, the claimant first saw Dr. Michael Hussey, who referred her to \n“Dr. Norton a wrist specialist for further evaluation.” [Cl. Ex. No 1 at 26.] Dr. Norton \n\nK. BISHOP- H307524 \n6 \n \ninitially suspected intersection syndrome and ordered injection therapy. An EMG study on \n30 January 2024 revealed right side carpal tunnel syndrome and cubital tunnel syndrome. \nAt her next appointment with Dr. Norton, they discussed her options and planned for \nsurgery \n On 13 March 2024, Dr. Norton performed surgery for right carpel tunnel syndrome, \nright radial tunnel syndrome, and right intersection syndrome. The procedure was \ncompleted without complications. When the claimant followed up in clinic two weeks later, \nDr. Norton noted that she was recovering well. He then referred her for occupational \ntherapy. \n Dr. Norton saw the claimant again on 23 April 2024. His note from that day states, \nin part: \nHPI: ... She is doing well other than some occasional pain and flareups. \nOverall she is improving. \n \nExamination- Right Wrist: The wound has healed without evidence of \ninfection. There is no significant swelling, inflammation, erythema, or edema. \n \nExamination- Right Hand: The wound has healed without evidence of \ninfection. There is no significant swelling, inflammation, erythema, or edema. \nThere is full motion in the fingers. Sensory exam is intact to light touch. \nThere is no hyperesthesia or hypoesthesia along the palm of the hand. \n \nPlan: Overall patient is improving. She does [have] some occasional pain and \nflareups with regards to the wrist and hand. At this point I will allow her to \nreturn to work without restrictions. She will continue with therapy in the \nform of range of motion and strengthening. She will come back to see me in 6 \nweeks. \n \n[Cl. Ex. No 1 at 63.] \n The claimant saw Dr. Norton again on 29 May 2024. The notes from that visit \nincluded, “Plan: Overall patient is doing well. She was released from therapy. At this point \nI believe she can return to work without restrictions. I will also place her at MMI. She will \ncome back to see me as needed.” [Id. at 67.] \n\nK. BISHOP- H307524 \n7 \n \n On 1 July 2024, Dr. Norton authored a letter stating that, “following the surgery the \npatient completed a course of therapy. She did well during her therapy and has gotten \nprogressively better.” He assigned a zero percent (0%) impairment rating based on the AMA \nGuides to the Evaluation of Permanent Impairment, Fourth Edition. [Id. at 68.] \n The claimant later presented to FTC for evaluation. The summary of that evaluation \nis dated 16 August 2024, and it includes various graphs, illustrations, measurement ranges, \nand measured results. FTC assigned a one percent (1%) impairment rating to the right \nupper extremity for radial deviation, which relates to a one percent (1%) impairment of the \nwhole person according to the AMA Guides to the Evaluation of Permanent Impairment, \nFourth Edition. [Id. at 69-74.] \n The claimant followed up with Dr. Norton again on 21 August 2024 for complaints of \nsome numbness, tingling, and cramping in her right hand. He recommended a repeat EMG \nstudy and returned her to normal work without restrictions. That EMG study was \nauthorized and scheduled to be performed after the date of the hearing. \n The respondents provided the claimant with a Form AR-N on 24 September 2024, \nindicating that the employer was notified of her accident on 9 November 2023. Also on 24 \nSeptember 2024, the claimant received Public Employee Claims Division Forms PECD 1, \nEmployee’s Report of Injury, and PECD 2, Worker’s Comp Information Sheet. [Cl. Ex. No. 5.] \nThe PECD 2 Form indicates that her disability began on 9 November 2023 and that her \nreturn to work was on 13 May 2024. \n A number of letters and emails were entered into evidence by both parties. The \nrespondents argued through counsel that the claimant was possibly “reinstated” as early as \n3 May 2024. [Resp. Ex. No 2 at 6.] That day, however, she received an email with the \nsubject line “Interview” that stated: \n\nK. BISHOP- H307524 \n8 \n \nI received your application for an Administrative Specialist I. Your interview \nwill be May 6, 2024, at 9AM, at the Maximum-Security Unit, 2501 State \nFarm Road, Tucker, Arkansas 72168. The attire for the interview is \nBUSINESS CASUAL (NO JEANS, HOODIES, HATS, SLIDES OR TENNIS \nSHOES). If for any reason you are unable to attend the interview... \n \nThe following documents are REQUIRED for the interview process: \nSocial Security Card \nSocial Security Numbers if you have children living in your home (jot them \ndown) \nDriver’s License \nHigh School Diploma, Transcript, GED or College Degree \n \n[Id. at 7 (emphasis in original).] \n An internal email exchange from 10 May 2024 includes, “This packet has been \napproved. Please provide a start date and supervisors name and position number.” A start \ndate of 13 May 2024 was then provided in a reply. [Id. at 8.] \n The claimant introduced an email exchange that began on 25 April 2024, with the \nrespondents notifying the claimant’s counsel of her release to return to work without \nrestrictions. [Cl. Ex. No 2.] The following day, her counsel responded, in part: \nMy understanding is that Ms. Bishop was terminated by the Respondent \nEmployer while she was off for her injuries. Now that she has been released \nto return to work, please accept this correspondence as the Claimant’s formal \ndemand that [her] employment with Respondents be reinstated immediately. \n \n...  \n \n...she should be reinstated with the same position, pay, seniority, and \nprogress regarding her probationary period as if her employment had never \nbeen terminated in the first place. \n \n... \n \nIt should be noted that her reinstatement should be done without causing her \nany prejudice as a result of her termination which was the result of a work-\nrelated injury. \n \n[Id. at 5.] After the respondents suggested that she apply for any of six open positions, \ncounsel responded, “She should not have to apply. She needs to be reinstated as per my \ncorrespondence.” [Id. at 4.] After some back-and-forth, the respondents explained on 29 \n\nK. BISHOP- H307524 \n9 \n \nApril 2024 that, “There is no guarantee to get a position due to background check and drug \nscreening. If she gets the position, she will not have to go through new employee training is \nmy understanding.” [Id. at 3.] \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nAn evidentiary matter must be addressed as an initial matter. After the evidence in \nthis claim was closed and the case was submitted, the respondents submitted two Motions \nto Introduce Newly Discovered Evidence. The first was submitted on 25 October 2024, and \nthe second was submitted on 12 December 2024. Notes from an EMG study, clinic visits, \nand physician orders, all occurring after the date of the hearing, were attached to the \nmotions. The claimant objected to the introduction of the evidence as not relevant to the \nissues at bar. The claimant also objected on the basis that the scheduling of at least some of \nthe appointments, specifically an EMG study, was known to the respondents ahead of the \n\nK. BISHOP- H307524 \n10 \n \nhearing and the respondents declined to seek a continuance based on the yet-to-be available \nreports and records.  \nThe Commission is not bound by the technical rules of procedure or evidence; but it \nshould conduct proceedings in a way that best ascertains the rights of the parties. A.C.A. § \n11-9-705(a)(1). To that end, it has been made clear that the Commission has “a great deal of \nlatitude in evidentiary matters.” Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 \n(2001). Our courts have held that evidence may be belatedly presented when (1) the newly \ndiscovered evidence is relevant; (2) the evidence is not cumulative; (3) the evidence would \nimpact the result of the inquiry; and (4) the movant is diligent in presenting the evidence. \nHaygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). \nThe records at issue were clearly not offered in compliance with A.C.A. § 11-9-\n705(c)(1)(A), which requires submission of evidence prior to the date of a hearing, because \nthey were not available prior to the hearing. But no continuance was requested based on \ntheir anticipated relevance or probative value.  \nThese treatment records may relate to other issues reserved for potential litigation, \nbut I do not find the records to be relevant to the matters at hand. Based on this finding, I \nam accepting the papers strictly as a proffer. They are being blue-backed with this opinion, \nbut are not admitted as evidence on this record.  \nA. The Claimant Proved by a Preponderance of the Evidence That She is \nEntitled to Permanent Partial Disability Benefits. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, \n878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-9704(c)(1). Objective findings are those findings which cannot come under the \n\nK. BISHOP- H307524 \n11 \n \nvoluntary control of the patient. Ark. Code Ann. § 11-9102(16)(A)(i). Although it is true that \nthe legislature has required medical evidence to establish a compensable injury, it does not \nfollow that such evidence is required to establish each and every element of \ncompensability. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \nMedical opinions addressing impairment must be stated within a reasonable degree of \nmedical certainty. Ark. Code Ann. § 11-9102(16)(B). Permanent benefits shall be awarded \nonly upon a determination that the compensable injury was the major cause of the \ndisability or impairment. Ark. Code Ann. § 11-9-102(f)(ii)(a). \"Major cause\" means more \nthan fifty percent (50%) of the cause. Ark. Code Ann. § 11-9-102(14). \nThe record contains competing assessments of whether the claimant is permanently \nimpaired because of her compensable injury. Dr. Norton provided an assessment of a zero \npercent (0%) impairment rating, while Casey Garretson, OTD, of Functional Testing \nCenters, Inc., assessed a one percent (1%) impairment rating. \nThe claimant first came under Dr. Norton’s care in January of 2024. He eventually \nperformed surgery on the claimant and directed her post-operative care, which included \ntherapy. Dr. Norton released the claimant without restrictions on 23 April 2024, noting \nthat “she will continue therapy in the form of range of motion and strengthening.” At \nanother visit on 29 May 2024, Dr. Norton placed the claimant at MMI, noting that “She is \ndoing much better. Her pain is improved. She was released from therapy.” On 1 July 2024, \nhe authored a letter assigning a zero percent impairment rating. The letter notes again that \nthe claimant “has gotten progressively better.” It goes on to state that, “At her last visit on \n5/29/2024 I released her to drive to work without restrictions. She will come back to see me \nas needed.” While Dr. Norton noted earlier that therapy was aimed at improving the \nclaimant’s strength and range of motion, he did not make any specific findings relative to \n\nK. BISHOP- H307524 \n12 \n \nthose stated goals. The letter does not include any information about objective testing or \nmeasures used to determine a zero percent impairment rating. \nOn 16 August 2024, the claimant sought another opinion on whether she was \npermanently impaired. She testified that her evaluation with FTC was more thorough than \nany exam performed by Dr. Norton and, specifically, that her range of motion was \nmeasured. The evaluation resulted in a finding that the claimant was entitled to what \namounted to a 1% impairment of the whole person due to a slight radial deviation \nimpairment.  \nThe Commission is authorized to accept or reject a medical opinion and is authorized \nto determine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 \nArk. App. 129, 84 S.W.3d 878 (2002). Based on the thorough and specific findings reported \nin the FTC evaluation, I assign more evidentiary weight to that impairment rating than the \none provided by Dr. Norton in a letter a month after his last visit with the claimant. The \nclaimant is, therefore, entitled to PPD benefits in accordance with a 1% rating of the whole \nperson. \nB. The Claimant is Entitled to the Cost of the Impairment Evaluation \nPerformed by Functional Testing Centers, Inc. \n \nThe claimant argues that the respondents are responsible for the costs associated \nwith the impairment evaluation performed by FTC. The respondents argue that the \nevaluation was not reasonable or necessary in light of the rating assigned by Dr. Norton, \nand they further argue that the evaluation was not authorized. \nAs discussed in Tempworks Mgmt. Servs. v. Jaynes, 2023 Ark. App. 147, 662 S.W.3d \n280, A.C.A. § 11-9-514(c)(1-3) requires that the respondents provide an injured employee \nwith a notice explaining the rights and responsibilities around a change of physician. \nUnauthorized treatment sought after an employee receives that notice is not the employer’s \n\nK. BISHOP- H307524 \n13 \n \nresponsibility. But an employee is not constrained by the change-of-physician rules if a copy \nof the notice is not provided. \nThe record in this claim does include a signed Form AR-N evidencing that the \nrespondents provided notice of the change-of-physician rules to the claimant. That form, \nhowever, was not provided to the claimant until after the claimant underwent a second \nopinion on her impairment evaluation from FTC. As noted above, the FTC evaluation \nsummary is dated 16 August 2024, and the Form-N is dated 24 September 2024. The \nclaimant was, thus, not bound by the change-of-physician rules; and the respondents’ \nargument that the FTC evaluation was unauthorized necessarily fails. \nThe parties disagree on whether the FTC evaluation was reasonable or necessary. \nThe claimant testified that the FTC evaluation involved thorough testing that Dr. Norton \ndid not perform during his exam(s) with the claimant, and that evaluation, indeed, found \nthat the claimant suffered an impairment. As discussed above, I have found the results of \nthe FTC evaluation to be credible. \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nA.C.A. § 11-9-508(a). The claimant bears the burden of proving that she is entitled to \nadditional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999). What constitutes reasonable and necessary medical treatment is a question of fact \nfor the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \nThe claimant sustained an accepted compensable injury and ultimately underwent \nsurgery and therapy related to that injury. She disagreed with her physician’s opinion on a \npermanent impairment rating and sought additional treatment, by way of a second opinion \non an impairment evaluation, from a licensed provider in the practice of performing \n\nK. BISHOP- H307524 \n14 \n \nimpairment evaluations. Under the facts of this claim, I find that a preponderance of the \nevidence establishes that the evaluation performed by FTC was reasonably necessary \ntreatment and that the respondents are liable for the cost of that evaluation. \nC. The Claimant is Entitled to Benefits Under A.C.A. § 11-9-505 for the Period \nof Time between her Release to Return to Work and her Reemployment. \n \nThe claimant seeks benefits under A.C.A. § 11-9-505 for the time between her full \nduty release (and the corresponding end of her TTD payments) and her return to \nemployment with the respondent. The statute, in pertinent part, provides: \nAny employer who without reasonable cause refuses to return an employee \nwho is injured in the course of employment to work, where suitable \nemployment is available within the employee's physical and mental \nlimitations, upon order of the Workers' Compensation Commission, and in \naddition to other benefits, shall be liable to pay to the employee the difference \nbetween benefits received and the average weekly wages lost during the \nperiod of the refusal, for a period not exceeding one (1) year. \n \nA.C.A. § 11-9-505(a)(1). \n \n In Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the Court \nof Appeals discussed the application of the statute. \nBefore Ark. Code Ann. § 11-9-505(a) applies several requirements must be \nmet. The employee must prove by a preponderance of the evidence that he \nsustained a compensable injury; that suitable employment which is within \nhis physical and mental limitations is available with the employer; that the \nemployer has refused to return him to work; and, that the employer's refusal \nto return him to work is without reasonable cause. \n \nThat case involved an employer’s offer for an injured employee to interview for an open \nposition. That uncertain offer of potential employment was, however, not consistent with \nthe policy promoted by the law. The Court explained, “In reviewing pertinent sections of the \nAct, we find that the legislative intent that the injured worker be allowed to reenter the \nwork force permeates the language of sections of the Act.” Id. \n\nK. BISHOP- H307524 \n15 \n \n In Ark. Dept. of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924, the Court \nmore recently reviewed a similar claim for benefits under § 505. Discussing its affirmance \nof an award for benefits, the Court explained: \n... Jennings only sought and was awarded 505(a) benefits for ADC's refusal to \nput her back to work when she fully recovered from her injury and could \nwork without medical restriction. ADC contends that it did not refuse to \nreturn Jennings to work because it told her that she could reapply for an \nADC job once she recovered. Jennings's counsel demanded reinstatement to \nher previous position, which the ADC refused. We agree with the \nCommission's findings that allowing an injured employee to \"reapply\" and \"be \nconsidered\" for employment is not sufficient to meet the statutory \nrequirement that the employer return the employee to work. That is because \nthe option to \"reapply\" and \"be considered\" for employment necessarily \ninvolves an element of uncertainty as to the outcome of the application \nprocess. Moreover, even if Jennings were rehired, she would have lost credit \nfor the time she had successfully worked during her probationary period, \nrequiring her to start anew. Both the plain language of the statute and its \nrecognized purpose focus on returning an injured employee to work, and we \nagree with Jennings that reinstatement, rather than reapplication, was \nrequired.  \n \nId. Here, the claimant was ultimately reinstated to her previous role at the same level of \npay. But it was not without the intervening uncertainty of her reinstatement during a time \nwhere there is no dispute that she was not receiving any benefits or wages. Indeed, the \nrespondents made clear that her reinstatement was not guaranteed. Discussing the \ndifference in reinstatement and a conditional offer to reapply, the Court made clear in \nJennings that “reapplication is not the equivalent of reinstatement, and the record clearly \nshows that [the claimant’s] attorney made a formal demand for reinstatement, which the \n[respondent] refused.” The same is true here. \n The respondents argued at the hearing that the claimant’s time without \nemployment or any benefits should be excused as distinct from a “refusal” to reinstate her \ndue to the nature of prison operations and the administrative time and process it takes to \nonboard someone into such a role. I do not find that the caselaw supports such a distinction \n\nK. BISHOP- H307524 \n16 \n \nor demurrer from an employer’s obligations under the law. The claimant should have been \nreinstated upon her release without restrictions. \n After her release without restrictions, the claimant received a letter, dated 25 April \n2024, stating that her final check for TTD benefits was being issued, covering “4/18/2024 to \n4/23/2024.” [Resp. Ex. No 2 at 5.] The claimant testified that her employment began again \non 13 May 2024, and the respondents’ documentary evidence was consistent with that date. \nAccordingly, I find that the claimant is entitled to benefits under A.C.A. § 11-9-505 for the \ntime between her release, beginning 24 April 2024, and her eventual return to work on 13 \nMay 2024. \n \nD. The Claimant Proved by a Preponderance of the Evidence that She is \nEntitled to an Attorney’s Fee. \n \n Consistent with the findings above, the claimant has met her burden on proving her \nentitlement to an attorney’s fee under A.C.A. § 11-9-715. \nV.  ORDER \n Consistent with the findings and conclusions above, the claimant is entitled to (1) \nbenefits under A.C.A. 11-9-505, (2) PPD benefits consistent with a 1% impairment to the \nwhole body, (3) the cost of the reasonably necessary impairment evaluation, and (4) an \nattorney’s fee on the indemnity benefits awarded herein, consistent with A.C.A. § 11-9-715. \nThis award shall bear interest at the legal rate pursuant to A.C.A. § 11-9-809. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H307524 KANEKALON BISHOP, EMPLOYEE CLAIMANT ARK. DEPT. OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 31 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judg...","fetched_at":"2026-05-19T22:45:58.528Z","links":{"html":"/opinions/alj-H307524-2024-12-31","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BISHOP_KANEKALON_H307524_20241231.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}