FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Goldberg & Dohan, by: Andy L. Caldwell, for appellant.
H. Montgomery, for appellee Public Employee Claims Division.
BRANDON J. HARRISON, Judge
Gruber, C.J., and Vaught, J., agree.
Burke appeals the opinion of the Arkansas Workers'
Compensation Commission (Commission) that affirmed and
adopted the opinion of the administrative law judge (ALJ)
finding that she had not proved entitlement to benefits under
Ark. Code Ann. § 11-9-505(a) (Repl. 2012). We affirm.
an employee of the Arkansas Department of Correction (ADC),
sustained compensable injuries to her knees and spine on 28
February 2015 after she fell while going up a flight of
stairs. Burke was released by Dr. Justin Seale for her spinal
injury on 19 August 2015 and released by Dr. Eric Gordon for
her knee injuries on 1 September 2015. ADC paid all
appropriate medical and related expenses and temporary total
disability (TTD) benefits through 1 September 2015.
January 2017, the ALJ convened a hearing to determine
Burke's entitlement to benefits under Ark. Code Ann.
§ 11-9-505(a), which provides:
Any employer who without reasonable cause refuses to return
an employee who is injured in the course of employment to
work, where suitable employment is available within the
employee's physical and mental limitations, upon order of
the Workers' Compensation Commission, and in addition to
other benefits, shall be liable to pay to the employee the
difference between benefits received and the average weekly
wages lost during the period of the refusal, for a period not
exceeding one (1) year.
§ 11-9-505(a) applies, the employee must prove by a
preponderance of the evidence that (1) she sustained a
compensable injury; (2) suitable employment which is within
her physical and mental limitations is available with the
employer; (3) the employer has refused to return her to work;
and (4) the employer's refusal to return her to work is
without reasonable cause. Clayton Kidd Logging Co. v.
McGee, 77 Ark.App. 226, 72 S.W.3d 557 (2002). Burke
contended that she was entitled to benefits under this
statute as of 2 September 2015.
evidence introduced at the hearing showed that, on 19 May
2015, Kimyata Randall, a human resources assistant at ADC,
sent an email to her supervisors that stated the following:
"Be advised that Connie Burke exhausts her leave on
5-21-2015. I have spoken with her and she has advised that
she will not be able to return into security." A second
email from Randall, dated 2 June 2015, stated:
Please be advised that I spoke with Connie Burke today. She
has again advised that she will not be returning. She did
confirm that she received the Essential Job function form
that you requested that I send to her. However, she has
declined to return it and has asked that we go ahead and
days later, on June 5, ADC's warden sent Burke a