*1 545 278, Brown, 328 Ark. 943 559 S.W.2d (1997) Jennings, (J. dissenting). ENTERPRISES, DAVIS DILLMEIER INC.
Cynthia 97-360 155 S.W.2d Court of Arkansas
Supreme delivered November Opinion *2 III, P.L.L.C., Fields, & William Sexton by: Kropp J. *3 appellant. for W.
Gary Udouj, appellee. L. Davis Corbin, Cynthia Appellant Donald Justice. of the Sebastian Court dis- Circuit judgment County appeals her Dillmeier missing prejudice complaint against Appellee Inc., for discrimination in violation of the Arkansas Enterprises, 1993, Ark. Civil Code Ann. 16-123-101 to -108 Rights §§ The trial court for 1995). dismissed (Supp. Appellant’s complaint lack of claim subject-matter jurisdiction, holding Appellant’s Act, was covered the Workers’ Ark. Code Ann. by 11-9-101 to -1001 This case issue of 1996). (Repl. presents §§ hence, first our impression requiring statutory interpretation; is to Ark. R. & Ct. jurisdiction l-2(a)(17)(i) (vi). pursuant Sup. The sole issue raised whether an who is is by Appellant discriminated based from a disability resulting work-related sue her under the Arkansas injury may Act. find that and we Civil We such suit is permissible, reverse. facts,
The relevant which are not in are set out in the dispute, as follows. at its was by complaint Appellant employed Appellee in Fort Smith in 1993. October facility beginning September 1994, 1993 and also in sustained bilateral April Appellant carpal tunnel which was caused and syndrome, by rapid repetitive motion work-related environment. Appellant’s Appellant’s her were as and she injuries accepted completed compensable, under the filed laws joint by petition with the Arkansas Workers’ on Commission November 1995. After her were injuries accepted compen- sable, was under active treatment from two Appellant placed phy- sicians and underwent for her epineurolysis decompression in both March and 1995. injuries time she was May During treatment, under active continued Appellant working Appellee and was able to the essential functions of her with or perform job, accommodations, without reasonable limited duties or 21, 1995, restrictions. in a status dated Specifically, report June was instructed to wear a primary physician splint, or brace and was restricted sling, from performing any repetitive motion and or any of items gripping, pulling, pushing, lifting in excess of zero for a weighing of four weeks. pounds period was advised Dr. Kenneth Similarly, Appellant on Rosenzweig that same date as follows: I would like for her to continue her rehab efforts [ilitation] — some try light if available duty job should be with her on, hand,
padded gloves no excessive of her pressure palm and avoiding any heavy and/or gripping, pushing, pulling repeti- time, tion for at least another month and at that things should be well back enough go regularjob. This should be on a trial basisand if she is unable to tolerate it despite surgical repair, then she bemay forced to do less intensive. something *4 later, 22, 1995, Two months on was August Appellant given a full and release from treatment complete and rehabilitation by both with noted physicians, restrictions. permanent Particularly, was advised to refrain Appellant from motion of any repetitive any activity activities, to continue seventy-one degrees, restrictive and rotation to avoid job overuse in pursue one any any particular mode. was of five Appellant assigned rating percent permanent in each physical date, impairment On that same upper extremity. after treatment, obtained her release from having Appellant work, where she reported was terminated from immediately employment by Appellee. termination,
As a result of her an action Appellant brought for against discrimination based Appellee disabil- upon physical in violation of the Arkansas ity, Civil Act. Rights Appellant asserted in her terminated her complaint Appellee despite that she had been the essential func- fact performing previously of her the fact that her tions job permanent despite impair- ments were less restrictive and less severe than those initially indicated claimed treating physicians. Appellant damages the form of lost mental and loss of She wages, anguish, dignity. $200,000. asked for in the also amount of punitive damages filed a motion to dismiss on Appellee Appellant’s-complaint that exclusive claim was ground jurisdiction clearly Commission, vested in the Arkansas Workers’ Compensation spe- to section After cifically pursuant ll-9-505(a)(l). hearing argu- sides, ment from both the trial court dismissed with prejudice that it was the Appellant’s complaint, General Assem- reasoning intent that the bly’s remedies under the Workers’ provided Com- Act were to be exclusive. pensation On that her claim is appeal, Appellant argues cognizable under the Arkansas Civil Act. She contends that workers Rights who are discriminated because of a from a against work- disability related are not entitled to less under the law than protection are workers who are disabled other means. She contends fur- ther that the Workers’ Act was never intended to be a vehicle for a worker’s civil protecting rights, available under the damages Arkansas Civil Act are more Rights than those offered under the complete Workers’ Compensation Act. In of her support relies on this argument, court’s Inc., Malone v. holding Lines, Trans-States 325 Ark. S.W.2d 659 (1996). Malone, had filed a in circuit appellant court complaint his retaliatory discharge Workers’ Act and for discrimination in violation of the
Arkansas Civil Act. The trial court dismissed the com- for lack of plaint subject-matter and failure jurisdiction to state a claim There, which relief could be as in the granted. present case, the that his civil claim appellant argued was cognizable in circuit court and that the trial court had thus erred in dismissing *5 his for lack of prejudice complaint subject-matter jurisdic- tion. This court did not address the merits of that directly argu- ment, but nonetheless held that the should have been complaint amend his allow the to without to appellant dismissed prejudice, facts, bare conclu- include the to opposed complaint specific law, claim. This court stated: of in of his sions support contention to appellant’s While we are somewhat sympathetic on two he two distinct causes of action based that has asserted statutes, we cannot discussthe fully on this limited record distinct rul- for reversalof the trial court’s arguments merits of appellant’s it to that say ings regarding subject-matter jurisdiction. Suffice in has asserteda cause actionin circuitcourtbased becauseappellant of Act we reversethatpart on theArkansasCivil part Rights of jurisdiction. lack subject-matter the orderdismissing complaintfor 386-87, at It is this lan- added). Id. at 926 S.W.2d 662 (emphasis of her assertion that her that relies on guage Appellant support claim is actionable in circuit court. Additionally, Appellant points Malone. It was stated to a unequivocally concurring opinion doctrine of the Workers’ that the exclusive-remedy Compensation “in conflicts with or bars a established or Act no properly way 387-88, at claim under the Act.” Id. Civil Rights alleged S.W.2d at 662. hand, claim is on the other asserts that Appellant’s
Appellee, 11-9-505, which limited to the section remedy provided when the refuses to return addresses rights employee’s to work. asserts further while injured Appellee of dis- the Arkansas Civil Act addresses Rights generally rights and hold the Workers’ abled to obtain persons employment, addresses the employees specifically work. who were on the to return to Accordingly, injured job in the Work- asserts that remedies Appellee specific provided remedies ers’ Act must over general prevail available under the Civil Act. Arkansas contends that argument, response Appellee’s refused to return her to the issue in this case is not Appellee rather, contends that the action filed in work after her she injury; Act is a circuit court under the Arkansas Civil Rights separate termi- distinct cause of action based decision to Appellee’s contends nate her because of her physical disability. Appellant work, return her to that this is not a case of refusal to Appellee’s return after her because she had been allowed to to work injuries, *6 time she was rehabilitation and was receiving during physical under medical restrictions. then whether this is
The initial is case one of dis- question crimination on the of the an part employer terminating or, rather, based whether it is one of disability employee refusal to return to work after employer’s employee having suffered a work-related Should we determine that this case injury. discrimination, an issue of we must next deter- presents employer mine whether there is an for such discrimination remedy adequate If, available to under the Workers’ Act. hand, on the other we should determine that this case concerns work, refusal to return the we employer’s injured employee should affirm the trial court’s dismissal with prejudice Appel- lant’s exclusive would be found in sec- complaint, below, tion of the 11-9-505 Act. For the reasons set out we conclude that this case an issue of discrimina- presents employer tion, rather than a situation where the has refused to return the to work. injured employee
Section of the Arkansas Civil 16-123-107(a) pertinent part: The of an right otherwise be free qualified from person race,
discrimination because of national religion, origin, gender, mental, or the presence any sensory, or is physical disability as and declared recognized to be a civil This shall right. right include, but not be limited to: (1) The to obtain and right hold without discrimination^] noted,
As
the issue
this
previously
is one
presented by
appeal
such,
of first
in this State. As
we
impression
look to cases from
other
jurisdictions
guidance.
Court of
Supreme
Washing-
that,
ton
in addition to
recognized
workers’
obtaining
compensa-
benefits,
tion
has the
to file suit
right
for discrimination based
Reese
upon physical disability.
Co.,
Sears,
v.
Roebuck&
It is the to the disabled worker is at issue. employerresponse claimed in this action turn on the injuries exclusively Appellants’ deliberate behavior. For the Law employers’ purposes Against Discrimination, arose; it does not matter how the handicap only the to the matters. employer’s response handicap In Id. at 502-03. that there was no conflict between concluding schemes, the two need thus no to choose between statutory act, full effect to either the court stated: giving sum, we hold that discrimination appellant employees’ actions are not barred the IIA exclusive remedy provision. — claim to have suffered two a work- Appellants separate injuries and a the arising from place physical injury subsequent injury discrimination. Because the employers’ alleged injuries handicap nature, are at (1) (2) of a different must arise different times in the work different causal factors history, (3) employee’s require fault, (an IIA claim is indifferent to a discrimination employer claim “the fault), injuries such two cannot be same requires Since the intended the IIA and the Law injury.” Legislature Discrimination to address the Against injuries two separate no conflict exists between the two stat- alleged by appellants, utes in question.
Id. at 503.
Cox Glazer Steel
Similarly, Corp., of Louisiana held that an 1992), Court Supreme who had settled a claim for an industrial accident could previously sue the former for discrimination the handi- The court the same capped. reasoning applied expressed have Court two schemes Washington Supreme statutory different bases: Specifically, compensation principle fault, but “the Civil excludes concept is fault-based intended for Persons legislation, Handicapped discrimination, and intolerance.” Id. at 519-20. prejudice prevent went on to conclude that the of the two The court laws purposes different, were also stating:
The worker’s law for acci- compensation provides compensation dental industrial or death. civil Guaranteeing job rights intended is to assure handicapped handicapped equal two are employment opportunity. pieces legislation directed at distinct problems.
Id. at 520. It should be noted that the Louisiana decision also turned on the fact that its workers’ act specifically that it does not bar other causes of action. That statutory distinction we find the notwithstanding, reasoning expressed by the court to be We turn now to a related decision persuasive. *8 from this court. Smith, 336,
In TravelersIns. v.Co. 329 Ark. 947 S.W.2d 382 we (1997), determined that an action filed in circuit court was not barred of the Workers’ by exclusive-remedy provision Act where the was not and was Compensation compensable of of the Act. The beyond facts of that case scope coverage were that the s deceased husband was killed in a one-vehi plaintiff cle accident while in the course of his with trucking Gerald suit in Trucking Company. plaintiff brought Johnson circuit court the insurance and its claims company adjuster on the that the had made grounds to adjuster misrepresentations her to refrain from causing husband’s embalming body with the funeral. claimed She that she had proceeding exper ienced severe and extreme mental as a result of those mis anguish The insurance and its representations. adjuster company argued that the s claim was barred plaintiff by exclusive-remedy provi that, sion of the Act. We held “we cannot construe Anna Smith’s claims of and extreme mental misrepresentation to be an anguish initial, anof aggravation suffered her hus compensable injury 342, band.” Id. at at 947 S.W.2d 385. We then acknowledged issue was whether the lack of a pertinent the Act answered the of whether the circuit necessarily question court lacked to hear the claim. In an jurisdiction plaintiffs to answer that we turned to the of Pro- writings attempt question, Larson for fessor guidance: . the defense is a of the
If.
.
exclusiveness
“part
quidpro quo
which the sacrifices and
are
gains
employees
employers
balance,”
extent
in
it
to follow that
ought logically
to some
put
should be
when com-
spared damage liability only
or,
has
liability
actually been
its
pensation
provided
place,
view,
state the matter from the
employee’s point
action for
should not be deemed taken
damages
away except
when
of value has been
in their
something
put
place.
Travelers,
343,
If the essence of the
and if the inju-
is non-physical,
sort,
ries are of the usual
non-physical
injury being
physical
at
added
most
list of
suit
injuries
makeweight,
should not be barred. But if the essence of the action is for
death,
or
. . . the action should be
recovery
physical injury
barred
if it can
even
be cast in the form of a normally non-physi-
cal tort.
Id. at
Lex K. Larson, Larson’s Workers’ Law Thus, at 13-180 from the 68.34(a), (1997) (footnote omitted)). § *9 Travelers, decision in it is clear that in whether an determining action a work-related be filed in circuit involving injury may court, an consideration is whether the Workers’ Com- important a the to pensation remedy provides plaintiff. hand, the case at we conclude that there is no such available to under the Act for her claim of
remedy Appellant from her from termination injury resulting employment Neither section section 11-9-505 nor 11-9-107 Appellee. provide a to in this instance. Section ll-9-505(a)(l) remedy Appellant provides: cause who without reasonable refuses to
Any employer who in the course of return an is injured employment employee work, suitable is available within the to where limitations, and mental order of the employee’s physical benefits, commission, shall be addition to other hable to the to the differencebetween benefits received and pay employee refusal, the lost the weekly wages such average during period for a one (1) not period exceeding year.
We construe the of that as ben- language plain provision providing efits in addition to those workers’ benefits compensation already evident, received the claimant. Such construction is being by the statute to the the between injured provides employee difference benefits received and being compensation average weekly lost wages refusal. during period Clearly, combination benefits and additional benefits are compensation to designed a total amount or her pay to his employee equal average salary, thus whole. From the making employee circumstances case, in this would presented not additional Appellant qualify benefits under section 11-9-505 because is no she longer receiving benefits for her any compensation injury.
Moreover, the facts of this case do not describe a situa tion where the has refused to return the employer injured to work. had in fact been returned already to work the time that she was medical during treatment receiving benefits. It was only upon Appellant’s report treatment, to work after been ing released from but having having sustained extremities, to both permanent impairment upper terminated her. termination thus Appellee cannot be Appellant’s viewed work; as a rather, refusal to her to by return Appellee it can be viewed as a termination. the benefits only Accordingly, section 11-9-505 do not offer this contemplated by Appellant any for her remedy injuries. 11-9-107, section which for admin
Similarly, istrative and criminal who penalties engages discrimination, does not provide Section remedy Appellant. 11-9-107 was intended be a for will legislature ful discrimination done in retaliation for the *10 That under the Act. sec- having sought compensation employee’s in tion pertinent part: in regard who discriminates willfully
(a)(1) Any employer term or condition of work of tenure of work or any the or hiring under the individual’sclaim on account individual any for benefits the or filing who in manner obstructs any impedes this or chapter, be to a fine subject under this shall chapter, of claims for benefits the as determined ($10,000) by ten thousand dollars up Commission. Workers’ Compensation Trust Injury be to the Second (2) This fine shall payable and not the carrier. by [Empha- Fund and the by paid sis added.] in 1993 in order was amended the
Section 11-9-107 by legislature the Workers’ the exclusive to preserve remedies for or the common-law retaliatory Act by eliminating case, In the ll-9-107(e). See section present wrongful discharge. contended, that she nor has does not allege, Appellee Appellant was fired in retaliation for having sought in the com- the information benefits. To contrary, provided were demonstrates that injuries accepted Appellant’s plaint and that benefits were by completed by Appellee compensable Thus, offered by to the Commission. any remedy joint petition case. to the facts of this section 11-9-107 is inapplicable sum, that there is no remedy In we conclude who is termi Act for an the Workers’ employee Thus, or her on the basis of disability. nated from his job of the Act does not preclude Appel exclusive-remedy provision under the Arkansas Civil lant from action bringing discrimination terminating based alleged upon Appellee’s of her restrictions on bases impairments. permanent Wash we reasoning this agree espoused respect, came it matters not how the disability Court that ington Supreme about; rather, deliberate be the focus should subsequent upon based action terminating and rem are we disability. Additionally, persuaded different and serve to both Acts are considerably edies provided by has two different alleged separate inju fulfill purposes. n — has for which she one a work-related injury, ries physical being
557 benefits, and a received one subse- being from action in termi- nonphysical arising Appellee’s quent injury her based The first is nating physical disability. injury Act, under the Workers’ exclusively cognizable Compensation while the is of the envisioned subsequent type Civil Arkansas Act of 1993. Rights we reverse the decision of trial court
Accordingly, with and we remand dismissing prejudice Appellant’s complaint, this case for further noteWe our proceedings. holding we make no decision as to whether has today, estab lished that she has a within of that “disability” term meaning Act, used in Arkansas Civil section Rights 16-123-102(3). Nor do we reach the of the issue reasons for termina Appellant’s tion from We hold Appellee. only with her claim under the Appellant may proceed Arkansas Civil Act. Rights
Reversed remanded. Brown, dissent. JJ., Newbern The Justice, dissenting. Newbern, David majority opinion runs afoul of the of the exclusive-remedy Workers’ provision Act. That makes Compensation no for a provision exception claim under the Arkansas Civil Act based (“ACRA”) on a a from disability work-related resulting compensable injury. based majority’s analysis, on decisions in large part jurisdictions where the statutes from differ the Arkansas Workers’ Compensa- Act, tion contains several flaws that cause it to the clear ignore command of the General Assembly.
Ms. Davis and the on of Malone majority rely holding Lines, Inc., Trans-States 325 Ark. 659 S.W.2d (1996), which reversed the dismissal of a discrimination cogni- complaint zable ACRA. The had been at dismissed the complaint trial level for lack of did subject-matter We not jurisdiction. dis- claim, cuss the merits of but held that based on the complaints ACRA fall within circuit court Some jurisdiction. reliance is also placed the Malonecase which stated upon concurring opinion doctrine of the Workers’ exclusive-remedy or or bars established “in no conflicts with Act way properly 387-88, Act.” Id. at claim under the Civil Rights alleged had Even if that statement (Glaze, S.W.2d at 662 J., concurring). in the Malone dictum in the been an obiter found majority opinion case, here. it would have answered hardly question presented for an Workers’ a remedy
Our *12 Ann. 11—9— such as Davis. Arkansas Code Ms. employee § 1996) 505(a)(1) (Repl. provides: to without reasonable cause refuses
Any who in the return an who is course of employee injured work, is the where available within to suitable employment limitations, of the and mental order employee’s physical benefits, commission, and be liable to in addition to other shall the received and to the differencebetween benefits employee pay refusal, lost of such averageweekly wages during period (1) a not year. one period exceeding to return an to suitable work is covered Refusal injured employee of the that section of the reason for doing regardless dis- The law thus for an who is so. remedy employee due and the criminated to her General Assembly injury, . made that exclusive. “The . . remedies has remedy granted all ... on account of . . . shall be exclusive of employee . . . Ann. other and remedies of the .” Ark. Code rights ll-9-105(a) (Repl. 1996). § does
It
be
that Ms. Davis
not fit within
might
argued
was
ll-9-105(a)
situation described in section
because she
dismissed
returned to work
but was
healing
during
period
on her
were made
after
restrictions
activities
permanent
however,
known.
we would not render a decision
Surely,
at
would
from retaining
discourage employers
injured employees
the extent
least until
is
determined.
finally
disability
Co,
Sears,
In Reese v.
&
731 P.2d
1987),
Roebuck
497 (Wash.
Seattle,
other
overruledon
v.
Louisiana Court did the court in Supreme Washington case, the Reese that the civil and the law workers’ compensa- tion law were meant to different While that injuries. may so, be it does not answer A Louisiana ll-9-105(a). statute cited § in the Cox in this opinion provided, “Nothing Chapter [Louisiana Workers’ shall affect the of the liability Act] . . . under other statute or the employer, civil or any liability, criminal, from an intentional act.” resulting LSA-R.S. The Louisiana 23:1032(B). law is simply remedies, not exclusive of other and that was the statutory holding of the case. also Smith, relies on TravelersIns. Co. v. majority *13 336,
Ark.
tion available to Ms. Davis by 11-9-505 to construing § mean a claimant must be currently workers’ com- receiving to pensation benefits for additional benefits under this qualify sec- tion. I do not The section that an agree. says who employer refuses return to work “shall be liable employee to the pay the difference between benefits employee received and the average lost weekly wages such during period (Emphasis sup- of refusal.” instance, In this plied.) benefits received of “during period such refusal” would be zero to be subtracted from the average lost, Ms. weekly wages Davis the whole sum giving to be received as the difference for one year.
560 dismissed was Davis presentment permanent
Ms. under 11-9-505 by filing can a remedy She pursue restrictions. § can also claim and a petition workers’ compensation §11- if discrimi- she can to be 9-107 for penalized prove can fees. Ms. Davis collect attorney’s From nation. penalty (1) Ms. Davis must by pre- Under §ll-9-505(a)(l) prove of the evidence that she sustained compensable ponderance that suitable within her (2) physical injury; that the is available with (3) mental limitations employer; work; her to and (4) has refused to return reasonable refusal to return her to work is without employer’s 230, 226, Smith, 55 Ark. 934 v. Fort cause. City App. Torrey case, 237, Ms. facts In this Davis has (1996). alleged S.W.2d of each of the in support requirements. to an 11-9-105 states that remedies
Section granted to the workers’ compensation subject provisions and remedies of the shall be “exclusive of all other rights chapter statutes This Court has held “other previously employee.” in the to the Act because it is must Workers’ yield that act as an exclusive interest of to give priority public policy 600, 457, Tanda, v. Ark. 940 S.W.2d Cherry remedy.” from Helms SouthernFarm Bureau (1997) Casualty, (quoting 450, 664 (1984)). 281 Ark. S.W.2d 870 I dissent. respectfully this dissent. J., joins
Brown,