Ark. Code Ann. § 11-9-505 (2026)

Research References

Ark. L. Rev.

Fulkerson, Vocational Rehabilitation in the Workers' Compensation System, 33 Ark. L. Rev. 723.

Recent Developments in Tort Law (Davis v. Dillmeier Enterprises, Inc.), 51 Ark. L.Rev. 223.

Case Notes

Purpose.

The plain language of subdivision (a)(1) provides benefits in addition to those workers' compensation benefits already being received by a claimant; the combination of compensation benefits and additional benefits are designed to pay the employee a total amount equal to his or her average salary, thus making the employee whole. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Legislative intent and language of subdivision (a)(1) of this section does not allow an employer to implement a 90-day, light-duty policy to circumvent statutory obligations designed to extend for a year. Allen v. Int'l Paper Co., 89 Ark. App. 266, 202 S.W.3d 13 (2005).

Applicability.

This section does not apply to a claimant released from treatment and consequently no longer receiving any compensation benefits for her injury. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

The filing requirement in subdivision (b)(4) does not mean that every claimant must formally file for rehabilitation with the Commission or waive entitlement to disability benefits. Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998).

The claimant was entitled to mileage costs for commuting to and from a university, notwithstanding a written rehabilitation agreement which expressly excluded such costs, since this section makes the reimbursement of reasonable travel expenses mandatory and since § 11-9-108 invalidated the parties' written agreement. Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).

Before this section can apply, an employee must prove by a preponderance of the evidence (1) that he sustained a compensable injury, (2) that suitable employment which is within his physical and mental limitations is available with the employer, (3) that the employer has refused to return him to work, and (4) that the employer's refusal to return him to work is without reasonable cause. Roark v. Pocahontas Nursing & Rehab., 95 Ark. App. 176, 235 S.W.3d 527 (2006).

Workers' Compensation Commission properly awarded an employee benefits under subsection (a) of this section even though she was no longer receiving worker's compensation benefits; an award of workers' compensation disability benefits is not a statutory prerequisite to an award of § 11-9-505(a) benefits. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Appeal.

An order granting both a rehabilitation examination and benefits under subsection (d) (now (b)) ends a separable branch of the litigation and is therefore appealable. Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991).

Award of Benefits.

Award of the costs of a rehabilitation program against employer held reasonable. Owens Country Sausage v. Crane, 268 Ark. 732, 594 S.W.2d 872 (Ct. App. 1980).

Where a workers' compensation claimant was not entitled to permanent disability benefits following injury, he was not entitled to the costs of a vocational rehabilitation program at his employer's expense under this section. Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983).

This section does not require that permanent disability benefits be awarded a claimant before he can have vocational rehabilitation but only that he be entitled to receive compensation benefits for a permanent disability. Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991).

Substantial evidence supported Workers' Compensation Commission's finding that employee met the requirements for benefits as the employee had a compensable injury, the employer did not deny that it had suitable employment within the employee's physical and mental limitations, nor did the employer deny that it refused to return the employee to work. Congo Stove, Fireplace & Patio, Inc. v. Rickenbacker, 77 Ark. App. 346, 74 S.W.3d 238 (2002).

Evidence supported the workers' compensation benefits awarded under this section, because the claimant returned to work immediately following his injury and continued to work for over a year before the employer fired him, and the claimant could not acquire a release to return to work since he had never been taken off work by any physician; the claimant was entitled to reasonable and necessary treatment for his ongoing back pain, and the employer had unreasonably refused to return the claimant to work when the employer had work available within his abilities. Nestle, USA, Inc. v. Drone, 2009 Ark. App. 311, 307 S.W.3d 54 (2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 562 (Sept. 10, 2009).

Workers' Compensation Commission properly awarded an employee benefits under subsection (a) of this section even though the employer had told the employee she could reapply for a position when she recovered, because both the plain language of the statute and its recognized purpose focus on returning an injured employee to work, and thus, reinstatement, rather than reapplication, is required; the employee's attorney made a formal demand for reinstatement, which the employer refused. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Workers' Compensation Commission properly awarded an employee benefits under subsection (a) of this section as the employee properly claimed that she was entitled to benefits under Arkansas workers' compensation law; while the employee, as a probationary employee, was not covered under the Family and Medical Leave Act's (FMLA) job-protection provisions, she was not seeking a remedy under the FMLA, and thus, the FMLA was irrelevant to the case. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

For Arkansas workers who are injured on the job, subsection (a) of this section provides job protections apart from, and in addition to, what the federal government provides pursuant to the Family and Medical Leave Act (FMLA); the state legislature has deemed it appropriate to grant enhanced job protections for those who are injured on the job, beyond what the FMLA generally provides for all covered employees. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Just as the Workers' Compensation Commission did not actually calculate the employee's average weekly wage, it did not specify that the employee was to be paid that wage for a full year; instead, the Commission simply cited to factors required before benefits could be awarded and the statute for the principle that the benefits covered the period in which the employer refused to reinstate the claimant up to a year , and the award was proper. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Workers' Compensation Commission properly awarded an employee benefits under § 11-9-505(a); § 11-9-506 was not applicable since § 11-9-505(a) benefits are not disability benefits, and, in any event, there was no showing below that the employee received unemployment benefits and the Commission made no findings on this issue. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Workers' Compensation Commission clearly found a claimant's supervisor's testimony that the sheriff's department could accommodate the claimant's restrictions to be credible, even though the claimant could not identify a particular job at the department that met her restrictions. Thus, the Commission's decision to award benefits to the claimant pursuant to this section was supported by substantial evidence. Sebastian Cty. Sheriff's Dep't v. Hardy, 2017 Ark. App. 597, 534 S.W.3d 163 (2017).

Collective Bargaining Agreements.

The requirement of subsection (a)(2) that the provisions of any collective bargaining agreement must be taken into account in determining whether suitable employment for an injured employee is available only pertains to the matter of seniority. Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278 (1998).

Where the employee worked a combination driver, he sustained a compensable injury to his right foot and could no longer perform his job duties. Because the collective bargaining agreement precluded his transfer to a road driver position, the employer's refusal to return him to work was not unreasonable; therefore, the employee was not entitled to benefits under subsection (a) of this section. Miner v. Yellow Transp., Inc., 2009 Ark. App. 197, 301 S.W.3d 12 (2009).

Denial of Benefits.

Workers' Compensation Commission's decision that the former employee failed to prove entitlement to benefits under this section was supported by substantial evidence, including evidence that the employee had proven that she sustained a compensable injury but failed to prove that there was suitable employment within her physical and mental limitations available with the employer, and there was evidence the employee refused to return to work without reasonable cause. Burke v. Ark. Dep't of Corr., 2018 Ark. App. 231, 547 S.W.3d 745 (2018).

Discretion.

The commission's role requires the exercise of its discretion when approving or disapproving a rehabilitation program. Before doing so, however, the commission must first decide if the claimant is a candidate for rehabilitation. Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).

Duty of Employer.

At a minimum, subsection (a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).

Allowing an injured employee to “reapply” and “be considered” for employment is not sufficient to meet the statutory requirement that the employer return the employee to work; that is because the option to “reapply” and “be considered” for employment necessarily involves an element of uncertainty as to the outcome of the application process, and both the plain language of the statute and its recognized purpose focus on returning an injured employee to work. Ark. Dep't of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924 (2017).

Extent of Disability.

Even if the claimant is not totally disabled, he may be entitled to enter a program of vocational rehabilitation under the provisions of this section. Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991).

Lost Wages.

The loss of income and temporary partial disability are irrelevant to rehabilitation maintenance benefits since this section deals with the costs of rehabilitation and not with the loss of wages. Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ct. App. 1980).

Arkansas Workers' Compensation Commission erred in awarding the claimant wage-loss benefits in excess of the claimant's anatomical impairment, because given the undisputed evidence that the claimant was contacted by the employer's vocational rehabilitation specialist but refused to speak to her until after the hearing was concluded, the only reasonable conclusion to be drawn was that a rehabilitation plan existed and that the claimant manifested an unwillingness to cooperate. Gaither Appliance v. Stewart, 103 Ark. App. 276, 288 S.W.3d 690 (2008).

Maintenance.

Maintenance does not include the upkeep of the claimant's home during the period of rehabilitation and an amount necessary to provide for all the claimant's household and living expenses, as well as those of his family. Gray v. Armour & Co., 268 Ark. 1072, 598 S.W.2d 434 (Ct. App. 1980).

Refusal to Participate.

While a worker cannot be compelled to enter a vocational rehabilitation program, there is nothing which prohibits the commission from calling to the claimant's attention his right of election where it deems this action appropriate or determines that the procedure might resolve doubtful issues. Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982).

An injured worker's refusal to participate in rehabilitation cannot be treated as a bar to an assessment of wage earning loss. Nicholas v. Hempstead County Mem. Hosp., 9 Ark. App. 261, 658 S.W.2d 408 (1983).

Commission may properly take a claimant's refusal to pursue rehabilitation into account in determining his degree of disability where that refusal hinders the commission's attempts to assess the extent of disability. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987).

Where the commission did not consider the claimant's failure to request rehabilitation analysis to be an impediment to its determination of permanent total disability, which it found based upon his physical injury, his age, his second-grade education, and his unskilled manual labor experience, the commission was not required to consider claimant's failure to request rehabilitation in determining the degree of his disability. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987).

Arkansas Workers' Compensation Commission erred in overturning an award of permanent partial disability benefits in excess of permanent physical impairment where substantial evidence failed to support its determination that employee refused to participate in or cooperate with an offered program of rehabilitation and job-placement assistance. Lohman v. SSI, Inc., 94 Ark. App. 424, 232 S.W.3d 487 (2006).

Where a benefits claimant refused to pursue two jobs, reported that he was unable to work the jobs, and refused to accept or read mail that came to him in connection with job-placement assistance, substantial evidence supported the denial of wage-loss benefits under § 11-9-505(b)(3). Moreover, there was no reasonable cause for his decision since his physician approved the jobs, and his financial incentive argument was rejected. Johnson v. McKee Foods, 98 Ark. App. 360, 255 S.W.3d 478 (2007).

Workers' Compensation Commission did not err in finding that an employer did not prove that an employee acted unreasonably in refusing to cooperate with a job-placement counselor and, thus, that subdivision (b)(3) of this section was not a bar to partial wage-loss disability because the Commission did not implement the wrong burden of proof when it was the employer's burden to establish the defense enumerated in subdivision (b)(3), and it failed in its burden; a vocational counselor identified a list of jobs, and the employee made no effort to pursue those jobs or any other employment, but the employee thought it would serve no purpose to apply for those jobs given his inability to stand for extended periods, the pain associated with his compensable injury, and the effect of his pain medication, and whether or not the employee was in fact capable of performing any of those jobs, the Commission did not find his lack of cooperation unreasonable under the circumstances, Tucker v. Cooper Std. Auto., Inc., 2010 Ark. App. 7, 374 S.W.3d 44 (2010).

Refusal to Rehire Employee.

The period of “refusal” does not last only until a position is filled; the period of refusal lasts as long as the employer is doing business not to exceed the one-year limit for payment of additional benefits. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).

Employer's failure to rehire claimant because a more qualified person was hired instead was refusal to return employee to work without reasonable cause. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).

Refusal to relieve employee not shown where injury was not compensable. Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278 (1998).

Workers' Compensation Commission erred in denying a claimant additional compensation benefits after his employer refused to continue his light-duty work and pay after a 90-day period, based on company policy, and refused to allow him to return to work until he could resume his old job. Allen v. Int'l Paper Co., 89 Ark. App. 266, 202 S.W.3d 13 (2005).

Additional findings were needed on whether an employee was entitled to benefits under subsection (a) of this section stemming from his work as a bus driver for the employer school district. The Commission was instructed to consider whether the employee's work as a bus driver was separate from, or part and parcel of, his maintenance work, which he was unable to perform; and if the bus driver work was considered separate, then whether the employee was entitled to section benefits under subsection (a). Bryant Sch. Dist. v. Aylor, 2011 Ark. App. 173, 381 S.W.3d 895 (2011).

Finding that the employee was not entitled to workers' compensation benefit under subdivision (a)(1) of this section was appropriate because he failed to prove that his job on the clean-up crew was suitable work and, more importantly, that the employer's refusal lacked a reasonable cause. Contreras v. Pinnacle Foods Corp., 2011 Ark. App. 780 (2011).

Workers' Compensation Commission's decision that suitable employment positions for an instructor's assistant existed at the community college throughout the school year was supported by substantial evidence; at the time claimant was released to her normal work duties, her normal workload at the college still existed and her employment contract for the school year had not expired. Nat'l Park Cmty. Coll. v. Castaneda, 2018 Ark. App. 458, 558 S.W.3d 911 (2018).

Workers' Compensation Commission's finding that the college refused to return the claimant to work was supported by substantial evidence. When asked whether claimant was offered a return to work when she was released to work, the associate vice-president of human resources testified that the claimant was no longer employed by the college at that time; and claimant was never informed that she was still eligible for rehire after her termination and the college terminated her while she was within her employment contract. Nat'l Park Cmty. Coll. v. Castaneda, 2018 Ark. App. 458, 558 S.W.3d 911 (2018).

Rehabilitation Evaluation.

Commission properly required the employer to pay for a rehabilitation evaluation. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), superseded by statute as stated in, Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984) (decided under prior law).

Employees who have sustained permanent-partial disabilities may not be viable candidates for rehabilitation and the commission is not automatically required to order an evaluation at the employer's expense merely because the employee requests it. Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).

Evidence supported finding that claimant failed to show entitlement to a vocational rehabilitation evaluation. Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).

A claimant was entitled to reject a rehabilitation evaluation inquiry and to pursue a hearing on whether he was permanently and totally disabled. City of Humphrey v. Woodward, 4 Ark. App. 64, 628 S.W.2d 574 (1982).

Injured worker entitled to permanent disability benefits, even though he did not request a rehabilitation program, where neither the employer nor Second Injury Fund suggested a plan of rehabilitation and the injured worker testified about his efforts to earn his GED and his hope to be trained in the computer field. Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998).

Request.

While this section requires that a request for rehabilitation be made prior to the determination of disability, it should be construed as only requiring the request prior to entry of a final order, a final order being one which concludes all rights of the interested parties and leaves no issues undetermined. Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982).

Suspension of Other Benefits.

Where the claimant is entitled to permanent partial disability benefits, the payment must be suspended during vocational rehabilitation training, so that there should be no credit against the disability award when paying maintenance under the rehabilitation provision; thus, upon completion of the vocational rehabilitation training, it becomes the responsibility of the employer to resume and pay out the employee's permanent partial disability entitlement. Ryan v. NAPA, 268 Ark. 1065, 598 S.W.2d 443 (Ct. App. 1980).

Termination of Employee.

Where an employee has alleged two separate injuries, one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her physical disability as a result of the injury, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by the Arkansas Civil rights Act, § 16-123-101 et seq.Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

There is no remedy under this chapter for an employee who is terminated from his or her job on the basis of a disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of this chapter does not preclude an employee from bringing an action under the Arkansas Civil Rights Act, § 16-123-101 et seq., based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Employee was properly denied workers' compensation benefits as it was the employee's actions, by not clearing her days off with her new supervisor when she returned to light-duty work and by taking a day off without permission and not calling in to work, that caused her job to be terminated. Roark v. Pocahontas Nursing & Rehab., 95 Ark. App. 176, 235 S.W.3d 527 (2006).

Sufficient evidence supported the determination by the Arkansas Workers' Compensation Commission that the employee altered the number of refills on the prescribed pain medication, justifying termination by the employer for falsifying work documents, because the nurse's testimony established the doctor's office procedure regarding the changing of a prescription, and the employer had a legitimate interest concerning when and if injured employees were being treated by physicians with the prescription of medication and the length of time the employee would be under the influence of the medication. Ballesteros v. Tyson Poultry, Inc., 2009 Ark. App. 349, 308 S.W.3d 639 (2009).

Cited: Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968); 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); Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992).