Ark. Code Ann. § 11-9-503 (2020)
Violation of safety provisions
-
- Notwithstanding any other definition of extra-hazardous employer as provided by § 11-9-409(c), any employer who fails to utilize the consultative safety services available through the Division of Labor, its own insurance carrier, or a private safety consultant shall be identified as an extra-hazardous employer if it is established by a preponderance of the evidence that an injury or death is caused in substantial part by the failure of the employer to comply with any Arkansas statute or official rule pertaining to the health or safety of employees or fails to follow safety consultant recommendations.
- When so notified, the employer shall comply with § 11-9-409(c)(2)-(8).
- Provided, if it is established by a preponderance of the evidence that the employee is injured as a result of the employee's violation of the employer's safety rules or instructions, the provisions of this section shall not apply.
History. Init. Meas. 1948, No. 4, § 10, Acts 1949, p. 1420; Init. Meas. 1956, No. 1, § 1, Acts 1957; Init. Meas. 1968, No. 1, § 1, Acts 1969; Acts 1975 (Extended Sess., 1976), No. 1227, § 5; 1979, No. 253, § 2; 1981, No. 290, § 2; 1986 (2nd Ex. Sess.), No. 10, § 2; A.S.A. 1947, § 81-1310; reen. Acts 1987, No. 1015, § 5; 1993, No. 796, § 16; 2019, No. 315, § 788; 2019, No. 910, § 5366.
A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 1015, § 5. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.
Acts 2001, No. 1757, § 9, provided in part:
“Nothing in the act, which originated as House Bill 2646 of 2001, nor in Act 1552 of 1999 shall impliedly repeal any part of Act 796 of 1993. Act 796 of 1993 is expressly reaffirmed by this act, which originated as House Bill 2646 of 2001.”
Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” in (a)(1).
The 2019 amendment by No. 910 substituted “Division of Labor” for “Department of Labor” in (a)(1).
Research References
ALR.
Validity, Construction, and Application of Provisions of Workers' Compensation Act for Additional Compensation Because of Failure To Comply with Specific Requirement of Statute or Regulation by Public for Protection of Workers. 31 A.L.R.6th 199.
U. Ark. Little Rock L.J.
Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.
Case Notes
Construction.
This section, being penal, is to be construed in favor of those upon whom a penalty is to be imposed. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).
Attorney's Fee.
Neither this section nor § 11-9-715 makes any provision for assessment of a separate fee based on the amount of the penalty. The attorney's fee allowable should be computed on the amount of compensation controverted and awarded, increased by the safety-violation penalty. Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988).
Computation.
Where claimant was totally disabled, but only 10% of the disability was caused by the injury suffered while working for the employer, the safety-violation penalty should be computed on the basis of the compensation due to the injury caused by the employer and not on the total compensation due the claimant. Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988).
Contributory Negligence.
An employee's contributory negligence does not prevent application of a penalty against the employer under this section. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).
The widow of an employee who died by electrocution, as a result of moving a grain auger without first lowering it to clear some high-voltage lines, had standing to bring an action against the employer for violation of safety provisions, pursuant to this section, even though the recovery went to the Second Injury Fund. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).
Evidence.
There was substantial evidence in workers' compensation case to support award of penalty under this section. Holiday Inns of Am., Inc. v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973); Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977); Herman Young Lumber Co. v. Koon, 30 Ark. App. 162, 785 S.W.2d 44 (1990).
Evidence sufficient to support commission's refusal to impose the penalty for violation of safety regulations. Dillaha Fruit Co. v. La Tourrette, 262 Ark. 434, 557 S.W.2d 397 (1977).
Before the penalty provision could be invoked it would have been necessary for claimant to have established by clear and convincing evidence that her injury was caused in substantial part by the failure of the employer to comply with an Arkansas safety statute or regulation pertaining to safety of employees. Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (Ct. App. 1979).
Proof of a violation of § 11-2-102 requiring a safe place of employment for employees is sufficient to support a penalty pursuant to this section, even though § 11-2-102 is not part of the Workers' Compensation Law. Georgia Pac. Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981).
There was no safety violation where there was evidence that the appellant had written safety regulations and that employees were taught these rules in training; rules were posted near work areas; and there were regular safety meetings with employees to reinforce awareness of safety in the work place and what could be done to avoid accidents. Reed v. Reynolds Metals, 33 Ark. App. 89, 801 S.W.2d 661 (1991).
Benefits awarded where evidence showed a violation of the employment safety statute, § 11-2-117. Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995).
Where the specific cause of an industrial accident was never ascertained with any degree of certainty, the claimant failed to meet his burden of proving by clear and convincing evidence that his injuries were substantially occasioned by a safety violation. Estes v. Cedar Chems., 54 Ark. App. 311, 925 S.W.2d 444 (1996).
Federal Laws.
Inasmuch as the Federal Occupational Safety and Health Act is not an “official regulation” within the meaning of this section, employer's failure to comply with regulations under that act did not entitle employees' dependents to an additional award. Harber v. Shows, 262 Ark. 161, 553 S.W.2d 282 (1977).
Knowledge.
Before the Workers' Compensation Commission can award an increase in benefits, knowledge must be shown on the part of the employer from which affirmative action or nonaction by the employer contrary to safety requirements may be inferred. Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978).
Private Right of Action.
The statute does not grant a claimant the right to bring a claim seeking to establish an employer as an extra-hazardous employer. Vittitow v. Central Maloney, 69 Ark. App. 176, 11 S.W.3d 12 (2000).
Settlement.
Where employee alleged violation of safety code in complaint against third party, subsequent settlement of the claim against the third party by compromise in which third party specifically avoided admission of liability was not res judicata as to the employer's liability and did not excuse the employer from the provisions of this section, the section being directed only to the precautions an employer must take for the health and safety of his employees. Holiday Inns of Am., Inc. v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973).
Time for Filing.
The claim for additional compensation should not be treated as so wholly distinct from other claims for additional compensation as to be exempted from the rule that a claim for additional compensation is not barred if filed while compensation is actually being paid; accordingly, claim for additional compensation filed after the original injury was not barred where compensation had been paid continuously from the beginning. Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977).
Cited: Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968); Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978); Continental Ins. Co. v. Richard, 268 Ark. 671, 596 S.W.2d 332 (Ct. App. 1980); Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ct. App. 1980); Harrison Furn. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981); City of Waldo v. Poetker, 275 Ark. 216, 628 S.W.2d 329 (1982); Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Moro, Inc. v. Davis, 6 Ark. App. 92, 638 S.W.2d 694 (1982); Farm Air Corp. v. Reader, 11 Ark. App. 72, 666 S.W.2d 717 (1984); Bemberg Iron Work v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984); Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985); Marianna School Dist. v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985); Glenn v. Farmers & Merchants Ins. Co., 649 F. Supp. 1447 (W.D. Ark. 1986); Ashby v. Arkansas Vinegar Co., 22 Ark. App. 167, 737 S.W.2d 177 (1987).