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Burke v. Arkansas Department of Correction

Court of Appeals of Arkansas, Division I

April 4, 2018

CONNIE BURKE APPELLANT
v.
ARKANSAS DEPARTMENT OF CORRECTION AND PUBLIC EMPLOYEE CLAIMS DIVISION APPELLEES

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G501794]

          Goldberg & Dohan, by: Andy L. Caldwell, for appellant.

          Robert H. Montgomery, for appellee Public Employee Claims Division.

          BRANDON J. HARRISON, Judge

          Gruber, C.J., and Vaught, J., agree.

         AFFIRMED

         Connie 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.

         Burke, 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.

          In 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.

         Before § 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.

         Documentary 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 terminate her.

         Three days later, on June 5, ADC's warden sent Burke a termination ...


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