618 S.W.3d 137
Ark.2021Background
- Calhoun, a part-time Meals-on-Wheels driver, suffered catastrophic injuries in a January 13, 2016 van rollover; after treatment he was released at MMI with a 24% whole-body impairment.
- Treating physician restricted Calhoun to sedentary, sit-down work and expressly stated he could not drive or carry objects.
- AAA (through its insurer and an occupational nurse) sent notices (March and June 2017) saying light-duty work was available immediately and could accommodate Calhoun’s restrictions; one AAA witness described the role as a sedentary greeter.
- At hearing AAA introduced no evidence of the number of weekly hours or the anticipated weekly pay for the offered position; Calhoun testified he told AAA he was in too much pain to work and did not seek job specifics.
- The ALJ awarded Calhoun a 60% wage-loss award in addition to the 24% impairment; the Workers’ Compensation Commission reversed, finding AAA made a bona fide offer at wages equal to or greater than Calhoun’s pre-accident average weekly wage.
- The Arkansas Supreme Court granted review and reversed the Commission, holding AAA failed to meet its statutory burden to prove the offer met or exceeded Calhoun’s pre-accident weekly wage because it presented no evidence of hours (and thus weekly pay).
Issues
| Issue | Plaintiff's Argument (Calhoun) | Defendant's Argument (AAA) | Held |
|---|---|---|---|
| Whether AAA made a bona fide offer of employment that precludes wage-loss benefits | Letter(s) were speculative, omitted essential terms (hours/pay), and thus not a bona fide offer | AAA had light-duty work available, could accommodate restrictions, and reasonably awaited Calhoun’s input to customize the job | No — employer bore burden to prove offer met or exceeded pre-accident weekly wage and failed to do so because it produced no evidence of hours/pay |
| Whether an offer must specify weekly wages (not merely that work is available) | Offer must show it provides weekly pay equal to pre-accident average; letters insufficient without hours/pay | The offer of work at or above minimum wage and the Agency’s readiness satisfy the statute | Yes — statutory requirement is weekly wages; absent evidence of hours, weekly wage cannot be proved, so employer failed its burden |
| Whether the contemplated greeter position exceeded Calhoun’s abilities | Job duties could exceed his physical/cognitive limits (greeter description in record) | Agency would customize duties, provide transportation, and could meet restrictions; refusal to engage truncated the process | Court did not reach this issue because employer failed to prove wage element; issue reserved on remand |
Key Cases Cited
- Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (recognizing wage-loss disability may be awarded in addition to anatomical impairment)
- Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (defining wage-loss as effect of injury on earning capacity)
- Sivixay v. Danaher Tool Grp., 2009 Ark. App. 786, 359 S.W.3d 433 (employer must show claimant is capable of performing offered work for offer to be bona fide)
- Redd v. Blytheville Sch. Dist. No. 5, 2014 Ark. App. 575, 446 S.W.3d 643 (court of appeals decision distinguishing offers where claimant testified hours and pay would be same)
- Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723 (statutory interpretation is a question of law reviewed de novo)
- Sierra v. Griffin Gin, 374 Ark. 320, 287 S.W.3d 556 (appellate review of workers’ compensation decisions: defer to Commission if supported by substantial evidence)