Ark. Code Ann. § 11-9-522 (2026)

Research References

ALR.

Validity, Construction, and Application of State Workers' Compensation Laws to Claim for Hearing Loss — Resulting from Long Term Noise Exposure. 99 A.L.R.6th 643 (2014).

Case Notes

Constitutionality.

Subsection (b) does not violate U.S. Const. Amend. 14 as the legislature was attempting to prevent the employer from being liable for benefits for the loss of the ability to earn wages while the injured employee is actually earning wages equal to the wages he was earning at the time of his injury, and that is a legitimate governmental objective. Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991).

Subsection (f) of this section does not violate the Equal Protection Clause; the classification between those workers aged sixty-five and older, who are receiving or who are eligible to receive public or private retirement benefits, and all other workers, is not arbitrary and capricious. Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997), aff'd in part, reversed in part, 333 Ark. 41, 969 S.W.2d 154 (1998).

Section 11-9-101 and subsection (f) of this section restate the goals of avoiding duplicate payments and of curtailing the cost of workers' compensation insurance, which are legitimate governmental concerns. Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997), aff'd in part, reversed in part, 333 Ark. 41, 969 S.W.2d 154 (1998).

Subsection (f) of this section violates the equal protection clause of the federal constitution because the justification for the age-based classification for groups receiving both workers' compensation benefits and social security retirement benefits is not rationally related to a legitimate government purpose. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998) (decision under prior law).

Arkansas Workers' Compensation Commission erred in holding that subdivision (f)(1) of this section was constitutional where the statute created a ceasing point for permanently totally disabled (PTD) benefits so that older workers who were eligible for social security or retirement benefits were foreclosed from receiving PTD for a legitimate work-related injury; there was no rational basis for such a distinction. Osborne v. Bekaert Corp., 97 Ark. App. 147, 245 S.W.3d 185 (2006).

In General.

An employee in Arkansas, suffering an unscheduled first injury, is to be paid compensation for the healing period as is done in case of a second injury or for a scheduled injury. Pyles v. Triple F. Feeds of Texas, Inc., 270 Ark. 729, 606 S.W.2d 146 (Ct. App. 1980).

Scheduled injuries differ from unscheduled injuries in that the award for a scheduled injury generally is limited to the benefits provided for that particular scheduled injury. Moser v. Arkansas Lime Co., 40 Ark. App. 113, 846 S.W.2d 188 (1993).

Construction.

The principal definition of the term “so long as,” as used in subsection (b), is “during and up to the end of the time that.” Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).

Subsection (b) of this section prohibits a claimant from receiving wage loss only “so long as” he has returned to work, obtained other employment, or has a bona fide and reasonable offer of employment. J B Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994).

A claimant will be barred from receiving benefits for wage loss disability under subdivision (c)(2) of this section if, but for his voluntary termination of his employment, he would still be employed and thus barred from receiving such benefits because of the provisions of subsection (b). J B Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994).

Subsection (f) of this section is not pre-empted by the federal Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.). Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997), aff'd in part, reversed in part, 333 Ark. 41, 969 S.W.2d 154 (1998).

Applicability.

The provisions of this section denying wage loss benefits to one who resumes work at the same or greater wage applies only to persons who were injured on or after its effective date of July 1, 1986. Arkansas State Police v. Welch, 28 Ark. App. 234, 772 S.W.2d 620 (1989)Criticized byFayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989).

Because the primary injury in the case occurred prior to the effective date of the 1986 amendment of this section, subdivision (c)(2) was not applicable. Driscoll v. Oklahoma Gas & Elec. Co., 28 Ark. App. 352, 775 S.W.2d 84 (1989).

Where claimant's injury occurred before the effective date of this section, her claim for wage loss benefits was not barred by this section. Crosby v. Micro Plastics, Inc., 30 Ark. App. 225, 785 S.W.2d 56 (1990).

This section did not apply where the employer failed to meet its burden of showing that its employee returned to work at wages equal to or greater than his average weekly wage at the time of accident. Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991).

Amount of Award.

The referee could not properly award 20% permanent partial disability based on claimant's age, training and wages where claimant sustained only a 10% injury. Motor Queen Motel v. Sandlin, 254 Ark. 166, 492 S.W.2d 257 (1973).

Substantial evidence supported a determination by the Arkansas Workers' Compensation Commission that an employee was entitled to a 30% wage-loss disability pursuant to subdivision (b)(1) of this section, based on his prior medical history, and testimony regarding the expected salary that he would earn upon his return to work. Hensley v. Cooper Tire & Rubber Co., 2011 Ark. App. 593 (2011).

Appellate Review.

Decision of the commission was affirmed where the issue was not whether the court might have reached a different result or whether evidence would have supported a finding contrary to the commission, but whether reasonable minds could reach the same conclusion as the commission. Williams v. St. Vincent Infirmary, 59 Ark. App. 148, 954 S.W.2d 302 (1997).

Arkansas Workers' Compensation Commission explained its award of wage-loss benefits as follows: the employee was age 50 with only a high school education; her work history consisted primarily of clerical duties and unskilled labor; and the employee began working for the employer in November 2003 and sustained a compensable injury in December 2004. The Commission's accounting of these additional factors that could reasonably affect the employee's future earning capacity supported the twenty-percent award. Dillard's, Inc. v. Johnson, 2010 Ark. App. 138, 374 S.W.3d 92 (2010).

Apportionment to Body.

Where the commission found that decedent had suffered a permanent partial disability of a percentage of the body as a whole, what he might have earned for a short period of time after his injury and prior to his death did not prove the commission in error in fixing the injury to his body as a whole. Dockery v. Thomas, 229 Ark. 984, 320 S.W.2d 257 (1959).

The words “loss of use of the body as a whole” when read in the light of other, nonconflicting sections of this chapter do not mean merely functional disability but include loss of use of body to earn substantial wages. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 684 (1961).

Where effect of foot amputation was continuing aggravation of back condition and five percent permanent partial disability to back, the Workers' Compensation Commission did not err in not apportioning the combined effect of amputation and back injury to the body as a whole. Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976).

The test of whether a claimant's injury falls within § 11-9-521(a)(1) through (f) is primarily a question of law and has nothing to do with whether a doctor connects the effects of the shoulder injury to the claimant's arm; accordingly, claimant's impairment was clearly an unscheduled injury which should have been apportioned to the body as a whole pursuant to this section even if the effects of the shoulder injury extended into his arm. Taylor v. Pfeiffer Plumbing & Heating Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983).

Burden of Proof.

To obtain benefits, it is the claimant's burden to show that injury or death of the employee was the result of an accidental injury, that arose in the course of the employment, and that it grew out of, or resulted from, the employment; however, the employer, or his workers' compensation insurance carrier, shall have the burden of proving the employee's employment, or the employee's receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident. Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991).

Compensation.

Employees of cleaning establishment who worked for the most part at a ranch owned by insured which was maintained primarily for advertising value were entitled to compensation. Great Am. Indem. Co. v. Bailey, 221 Ark. 469, 254 S.W.2d 322 (1953).

If claimant would have been able to work longer if his injuries had not occurred he is entitled to compensation. Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

The term compensation as used in this section refers to money benefits paid to the injured employee for disability. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Where the claimant sustained a compensable injury while working at one job, his compensation benefits were properly based on wages from that job rather than on the combined incomes of that job and another held by claimant. Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ct. App. 1980).

Earning Capacity.

Claimant who sustained, prior to the applicability of subsection (e) of this section, a 30% decrease to his earning capacity above the permanent physical impairment established by medical evidence, was entitled to permanent partial disability benefits. Nelson v. Timberline Int'l, 57 Ark. App. 34, 942 S.W.2d 260 (1997).

Determination that the claimant was disqualified from receiving wage loss benefits was proper, because the claimant was not entitled to permanent-partial disability benefits in excess of his one-percent permanent physical impairment, when under this section, the claimant was terminated from his job due to his own misconduct in connection with the job. Meadows v. Tyson Foods, Inc., 2013 Ark. App. 182 (2013).

Former school teacher, age 59, whose back injury prevented him from working full days but who was unable to find part time work, was entitled to an increased disability rating and permanent disability based on the wage-loss factor, pursuant to this section. The ALJ's opinion specifically referenced consideration of appellee's age, education, experience, and motivation to return to work. Gravette Sch. Dist. v. Harmon, 2013 Ark. App. 266 (2013).

Effect of Subsection (d).

Subsection (d) prevents an employer from just keeping or putting an injured employee on the payroll in order to invoke the application of subsection (b). Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991).

Evidence.

In determining the extent of employee's compensable disability, it was error to consider only medical evidence; consideration should also have been given to employee's age, education, experience, and other matters affecting wage loss. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 684 (1961).

Evidence sufficient to support denial of benefits. Jolly v. J.M. Hampton & Sons Lumber Co., 234 Ark. 574, 353 S.W.2d 338 (1962); Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995).

Evidence sufficient to support award of benefits. Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W.2d 872 (1967); Curtis Mathes of Ark., Inc. v. Summerville, 256 Ark. 340, 507 S.W.2d 108 (1974).

Where the claim is for permanent partial disability based on incapacity to earn, the commission should consider all competent evidence relating to the incapacity, including the age, education, experience, and all other matters affecting the claimant's incapacity to earn the same wages he was earning at the time of his injury. Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968).

A commission finding establishing permanent partial disability at a figure greater than that established by medical testimony must be based on substantial evidence. Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1969).

Evidence insufficient to support award of benefits. Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1969); International Paper Co. v. Langley, 251 Ark. 859, 475 S.W.2d 686 (1972).

Substantial evidence supported the commission's finding that the claimant had only a permanent partial disability, and was not permanently totally disabled. Smelser v. S.H. & J. Drilling Corp., 267 Ark. 996, 593 S.W.2d 61 (Ct. App. 1980).

The Workers' Compensation Commission's decision that the claimant's second bypass surgery was not compensable because the claimant's volitional overeating caused the disruption of the staples and was an independent and intervening cause was not supported by substantial evidence, where it was based on the testimony of doctors that the most common reason that the staples fail is overeating by the patient. Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986).

The Workers' Compensation Commission's finding that the claimant's second gastric bypass surgery was not made necessary by complications of the first surgery was not supported by substantial evidence, where there was evidence that the doctor who performed the second surgery not only redid the gastric bypass, but also performed a procedure designed to control ulcers and corrected an incisional hernia. Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986).

The commission's award of wage-loss disability was supported by substantial evidence. Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992).

Evidence supported findings of permanent partial disability by the compensation commission. Levi Strauss & Co. v. Laymance, 38 Ark. App. 55, 828 S.W.2d 356 (1992).

Where the Workers' Compensation Commission's decision to deny wage loss compensation to claimant under the provisions of subsection (b) was not supported by the law and the evidence it was reversed and remanded. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), superseded by statute as stated in, Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998).

The commission's denial of wage-loss disability was supported by substantial evidence. Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998).

Substantial evidence supported a 50% wage-loss disability award where the medical evidence indicated that the claimant's physical abilities were limited and that she remained in a substantial amount of pain and the claimant's testimony revealed that her condition had worsened to the point where she was often immobile and that on some days she could not get out of the house or even walk. Douglas Tobacco Prods. Co. v. Gerald, Inc., 68 Ark. App. 304, 8 S.W.3d 39 (1999).

Where a 57-year-old worker's occupational asthma precluded her from continuing in the line of work she had followed for 31 years, and she had only a GED, her employment opportunities may have been limited; but as the worker's compensation commission also considered her lack of motivation in finding employment, its award of 50 percent wage-loss benefits was proper. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

Workers' Compensation Commission erred in denying the claimant permanent total disability where, considering the claimant's limited education, manual-labor employment skills, severe pain in his back and legs, coupled with the side effects of necessary prescription pain medication, in addition to the testimony of his doctors and vocational expert, the appellate court was convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the commission in finding the claimant was anything less than permanently and totally disabled. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004).

Arkansas Workers' Compensation Commission did not err in finding that employee failed to prove permanent and total disability entitlement; the Commission found that employee lacked motivation to return to work, and the court could not find that the Commission lacked a substantial basis for choosing to accept one treating physician's opinion over that of another physician. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005).

Substantial evidence supported the Arkansas Workers' Compensation Commission's decision that an employee did not meet his burden of proving his entitlement to permanent-total or wage-loss disability benefits because the employee's compensable injury did not require surgery, and he was issued only a one-percent impairment rating for it; the functional capacity evaluation evaluator concluded that the employee was capable of performing medium work, and neither of the employee's treating physicians opined that he was permanently and totally disabled or that he could not work; White v. Ark. State Highway & Transp. Dep't, 2009 Ark. App. 768 (2009).

In a workers' compensation action, wage-loss award in an amount that would be equal to only a 15-percent, whole-body impairment, was proper because the employee had job skills that did not involve activities that were physical in nature and those skills were transferable and marketable, as stated in subdivision (b)(1) of this section. Gunter v. Ark. State Highway & Transp. Dep't, 2012 Ark. App. 143 (2012).

Substantial evidence supported an award of wage-loss disability benefits because an employee was a 54-year-old man with a GED whose only additional education was as a paramedic, which the employee had done for 23 years before the employee's injury and could not subsequently do, and any lack of motivation to return to work, which was only one factor, as well as any transferable skills, were considered. Johnson County Reg'l Med. Ctr. v. Lindsey, 2014 Ark. App. 586, 446 S.W.3d 647 (2014).

Workers' Compensation Commission properly found that an employee failed to prove permanent total disability or entitlement to a greater amount of wage-loss benefits; while he was 57 years old, had not completed the 11th grade, and did not have skills transferable into the light category of work, his true functional capacity level was unknown. The employee gave unreliable effort in the examination and his statements to his doctors and a vocational rehabilitation counselor showed his lack of motivation to return to work, which impeded the Commission's ability to assess the full extent of the employee's current wage-earning capacity. Stauber v. City of North Little Rock, 2015 Ark. App. 54 (2015).

Workers' Compensation Commission's award of 32% permanent partial disability was supported by substantial evidence considering factors such as the claimant's age and work experience. Nichols v. Micro Plastics, Inc., 2015 Ark. App. 134 (2015).

Substantial evidence supported the Workers' Compensation Commission's decision that a claimant was not permanently and totally disabled, but sustained wage-loss disability in the amount of 35% as a result of a shoulder injury because the claimant made no effort to find a job or return to the workforce and no treating physician opined that the claimant was unable to resume any gainful employment. Furthermore, the Commission did not find credible that the claimant was confined to the claimant's bedroom as a result of the injury. Schall v. Univ. of Ark. for Med. Sciences, 2017 Ark. App. 50, 510 S.W.3d 302 (2017).

Workers' Compensation Commission’s decision to award an injured employee an 11% impairment rating to his body as a whole and 10% in wage-loss disability was supported by substantial evidence; the Commission considered all the evidence and testimony presented, the decision was supported by objective medical findings, and the Commission clearly stated that it found a neurologist's conclusions to be supported by the record and that his conclusions were entitled to more evidentiary weight than the opinions of various other doctors. Tempworks Mgmt. Servs. v. Jaynes, 2020 Ark. App. 70 (2020).

Legislative Intent.

The intent of the legislature to impose a bar in subsection (b) on wage-loss benefits conditioned on continued employment or offer of employment, rather than a permanent bar, is implied by the provision for reconsideration based on changed circumstances found in subsection (d). Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).

The legislature's intent that the bar against wage loss benefits be other than permanent was implied in the provision for reconsideration of disability rating based on changed circumstances found in subsection (d) of this section. J B Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994).

“Misconduct.”

All conduct is not, as a matter of law, “misconduct in connection with the work” as that term is used in subdivision (c)(2). Belcher v. Holiday Inn, 49 Ark. App. 64, 896 S.W.2d 440 (1995).

For guidance on the issue of misconduct in connection with work, see Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), and concerning leaving work voluntarily, see JB Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994). Belcher v. Holiday Inn, 49 Ark. App. 64, 896 S.W.2d 440 (1995).

Although claimant was discharged for excessive absenteeism, claimant was not barred from recovering wage loss under subdivision (c)(2) where claimant's absenteeism was necessitated in part by the effects of claimant's compensable injury. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996).

Offer of Employment.

Subdivision (c)(1) places the burden on the employer of providing “a bona fide offer to be employed”; this means that there must be an actual offer of employment. Cross v. Crawford County Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).

Employee who was offered his old job back was given a bona fide offer of attainable employment and was not entitled to wage-loss disability benefits on the claim that the job he chose instead provided reduced hours. Estes v. Cedar Chems., 54 Ark. App. 311, 925 S.W.2d 444 (1996).

Provisions of subsection (b) of this section and § 11-9-526 did not bar an employee's wage loss claim because, although there was testimony that the employee would have been “recommended” for employment, a possible recommendation for employment was not the same as an offer of employment and the statutory bar required an actual offer of employment. Hope Sch. Dist. v. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011).

Finding that an employer failed to make a bona fide offer of employment to a workers' compensation claimant for purposes of subdivision (b)(2) of this section was supported by substantial evidence as the claimant testified that she could not physically perform the job duties of the gelatin-packer position, and her testimony was corroborated by a co-worker, who stated that she had observed the claimant since she was injured and did not believe that the claimant could do the job; a vocational rehabilitation consultant, after hearing the claimant's description of her difficulties, also testified that the consultant did not know whether the claimant could do the job. Foster v. Gilster Mary Lee Corp., 2011 Ark. App. 735, 387 S.W.3d 212 (2011).

In a workers' compensation case, a finding that an employer did not make a bona fide job offer to a benefits claimant under subdivision (c)(1) of this section precluding her from obtaining wage-loss disability was supported by substantial evidence because a greeter job was beyond the claimant's physical limitations, according to the description of the job and the claimant's experience in working in that precise position; the employer failed to carry its burden of proof relating to the legitimacy and limitations of the alleged “greeter” position. Wal-Mart Assocs. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683 (2012).

Subdivision (b)(2) of this section did not bar an employee's receipt of wage-loss disability benefits because, after the employer made a bona fide job offer, the employee's condition worsened, after which the employer made no further offer of employment within the employee's restrictions. Johnson County Reg'l Med. Ctr. v. Lindsey, 2014 Ark. App. 586, 446 S.W.3d 647 (2014).

Percentage of Impairment.

The percentage of permanent physical impairment must be established before the Workers' Compensation Commission can consider a claim for permanent partial-disability benefits in excess of the employee's percentage of permanent physical impairment; similarly, any consideration of the employee's age, education, work experience, and other matters reasonably expected to affect his earning capacity may not occur until the commission has first determined the percentage of permanent physical impairment. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000).

Workers' Compensation Commission did not disagree with employer's finding that, using AMA's Guides to the Evaluation of Permanent Impairment (AMA Guides) the employee was entitled to a 24 percent impairment rating for a total shoulder arthroplasty and a 10 percent impairment rating for a distal clavicle arthroplasty, or that these ratings combined to produce an impairment rating of 32 percent, however, the employer had misinterpreted Table 27 of the AMA Guides as assigning impairment values only to the shoulder joint, when Table 27 instead assigned impairment values from arthroplasty of specific bones and joints to the entire upper extremity. Avaya (Lucent Techs.) v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003).

In a workers' compensation case, substantial evidence supported a four-percent impairment rating for a compensable right shoulder injury under subdivision (g)(1)(A) of this section based on the testimony of a treating physician; the Workers' Compensation Commission was not required to award an impairment rating recommended by the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Greene v. Cockram Concrete Co., 2012 Ark. App. 691 (2012).

Workers' compensation claimant was not entitled to receive permanent partial-disability benefits in excess of the percentage of the claimant's permanent physical impairment because there was testimony from the claimant that the claimant received a raise upon returning to work. Moreover, the employer introduced an exhibit documenting the wages and hours worked by the claimant that showed that the claimant worked consistently after returning from an accident, including working a substantial amount of overtime. Wilson v. Riceland Foods, Inc., 2017 Ark. App. 653, 535 S.W.3d 317 (2017).

Finding that a workers' compensation claimant was entitled to a 30% impairment rating was supported by substantial evidence because the Workers' Compensation Commission was confronted with two different medical opinions as to the claimant's impairment rating and it was within the Commission's province to reconcile the conflicting evidence, including the medical evidence. Ark. Highway & Transp. Dep't v. Work, 2018 Ark. App. 600, 565 S.W.3d 138 (2018).

“Physical Impairment.”

The reference to “physical impairment” in § 11-9-704(c)(1) refers to a determination of anatomical disability as opposed to a loss of a wage earning capacity under subsection (b) of this section. Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

Employee was properly found not disabled under this section for back strain because she did not receive a whole-body impairment rating as a result of her compensable injury—she merely sustained a back strain, and her MRIs and myelograms show that her back was essentially normal. Also, none of her treating doctors recommended any type of surgical intervention. Harris v. Weyerhaeuser Co., 2011 Ark. App. 672 (2011).

Preclusion of Wage Loss Claim.

Subsection (b) of this section precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident. Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).

Employee who had a compensable injury leading to an anatomical impairment but who had returned to work at the same wages as prior to his injury was not entitled to recover permanent-partial-disability benefits in excess of his impairment rating when he walked off the job due to a demotion unrelated to his physical condition, pursuant to under subdivision (b)(2) of this section. Southwestern Energy Co. v. Ezell, 2011 Ark. App. 782 (2011).

Employee was properly denied wage-loss disability benefits under subdivision (b)(1) of this section after the employee slipped and fell while cleaning floors because the employee failed to prove that the employe suffered a permanent anatomical impairment. Drake v. Sheridan Sch. Dist., 2013 Ark. App. 150 (2013).

Res Judicata.

The Workers' Compensation Commission's finding that the claimant's second gastric bypass surgery was not compensable was not barred by res judicata, where the issue before the commission after the first surgery was whether the procedure was reasonable and necessary medical treatment in light of the claimant's injury, and the issue after the second surgery was whether the second procedure was a natural and incidental consequence of the first procedure. Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986).

Wage Earning Loss.

The wage-loss factor rather than the functional or anatomical loss is controlling in disability determinations which are to be made by the commission on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant's earning power. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985).

A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).

Where the employer posted job opportunities on its bulletin board, it did not make bona fide offers of employment as was required by this section to bar an award of wage-loss disability, but rather invitations to bid for specific jobs to be awarded on a trial basis, in which a bid by an employee would not constitute an acceptance of an offer of employment. Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992).

The wage loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Grimes v. North Am. Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993), aff'd, 316 Ark. 395, 872 S.W.2d 59 (Ark. 1994).

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood; the Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage-loss, such as the claimant's age, education, and work experience. Cross v. Crawford County Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).

Where employee was 58 years old, had limited education, and had worked as a mechanic for many years, the Arkansas Workers' Compensation Commission had substantial evidence justifying its decision to award employee a twenty-five percent wage loss in excess of an impairment rating under subdivision (b)(1) of this section. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).

Arkansas Workers' Compensation Commission erred when it determined that employee seeking benefits for a compensable back injury lacked motivation to return to work due to the fact that he refused to move from a certain geographical location. Johnson v. Latex Constr. Co., 94 Ark. App. 431, 232 S.W.3d 504 (2006).

In a workers' compensation case, there was no error in awarding a benefits claimant a sixty-percent wage-loss disability under § 11-9-522(b) where his age, intellectual range, impairment rating, prior employment, and complaints of pain and difficulty sleeping were considered; his depression was not considered. Moreover, a videotape showing him performing certain activities was explained by the claimant's addiction to pain medication, and a doctor's decision to return the claimant to work was not credible based on the results of a valid functional-capacity evaluation. SSI, Inc. v. Lohman, 98 Ark. App. 294, 254 S.W.3d 804 (2007).

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).

Employee was properly found to have sustained a 20 percent wage-loss disability pursuant to subdivision (b)(1) of this section after suffering a torn rotator cuff because the employee could not use the employee's left upper extremity for long periods of time; it was reasonable to believe that the employee would be unable to return to driving over the road for 11 hours a day as a truck driver. Averitt Express, Inc. v. Gilley, 104 Ark. App. 16, 289 S.W.3d 118 (2008).

Arkansas Workers' Compensation Commission erred in finding that the job in the forge department was a bona fide offer of employment that disqualified the employee from receiving wage-loss benefits under this section, given the evidence that defendant was not physically capable of performing a labor-intensive job in a hot environment. Sivixay v. Danaher Tool Group, 2009 Ark. App. 786, 359 S.W.3d 433 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 20 (Jan. 6, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 153 (Mar. 11, 2010).

Arkansas Workers' Compensation Commission's opinion displayed a substantial basis for denying an employee's claims for permanent total disability under the Worker's Compensation or additional wage-loss benefits because noting the employee's testimony and the reports of his surgeon, the Commission concluded that the only change in physical condition related to his compensable cervical injuries was the fact that his cervical problems had dramatically improved following his third cervical surgery; the Commission found that the employee was vastly improved since its prior decision awarding him benefits. Martin v. Jensen Constr. Co., 2010 Ark. App. 294, 374 S.W.3d 774 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 448 (May 12, 2010).

Arkansas Workers' Compensation Commission did not err in finding that an employee failed to prove that the employee was entitled to additional wage-loss disability benefits under subdivision (b)(1) of this section after a 400-pound steel bar hit the employee on top of the head because although the employee testified that the employee was still in pain after neck surgery, the employee acknowledged that the employee's symptoms had improved since that time. Kelley v. Cooper Std. Auto., 2011 Ark. App. 665, 386 S.W.3d 570 (2011).

Workers' Compensation Commission found that appellee was totally and permanently disabled and was injured to an extent that he could only perform services that were limited such that a reasonable stable market for such services did not exist, and thus the Commission improperly relied on the odd-lot doctrine contrary to subsection (e) of this section. American Eagle Airlines v. Berndt, 2012 Ark. App. 220 (2012).

Although the employee might be right that the factors considered by the Workers' Compensation Commission would also support a claim of total and permanent disability under § 11-9-519, the court could not make that determination because the Commission's finding of permanent disability was supported in part by the improper odd-lot doctrine finding, and thus the court reversed in this regard and remanded. American Eagle Airlines v. Berndt, 2012 Ark. App. 220 (2012).

Twenty-five percent wage loss benefit was appropriate because the Workers' Compensation Commission properly considered under subdivision (b)(1) of this section that the employee would be able to pursue gainful employment, even with his permanent physical limitations, based on his work experience and above-average intelligence. Cooper Tire & Rubber Co. v. Leach, 2012 Ark. App. 462 (2012).

In a workers' compensation case, a finding of a 25 percent wage-loss disability was supported by substantial evidence where the claimant's age, education, work experience, attitude and motivation, permanent anatomical impairment, and permanent physical limitations were considered; the claimant only had an 8th grade education, she was 60 years old, she continued to have pain and lifting and standing restrictions, and she had no marketable skills. Wal-Mart Assocs. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683 (2012).

In a workers' compensation case, an applicant was found not to be permanently disabled based on an alleged failure to prove an inability to earn any meaningful wage in the same or other employment; there was a substantial basis for reducing the finding of permanent disability to a 40 percent wage-loss disability. It was within the Workers' Compensation Commission's authority to assess that weight and credibility differently than did the administrative law judge. Pruitt v. Community Dev. Inst. Head Start, 2013 Ark. App. 548 (2013).

Workers’ Compensation Commission demonstrated a substantial basis for denying an employee’s claim for wage-loss disability because reasonable minds could conclude the employee failed to prove she was entitled to any wageloss disability in excess of the fifteen-percent whole body impairment awarded; the employee’s work experience was rather sedentary, and the functional-capacity evaluation concluded that despite her significant limitations, she was capable of performing sedentary tasks. Templeton v. Dollar General Store, 2014 Ark. App. 248, 434 S.W.3d 417 (2014).

Workers' Compensation Commission's denial of the worker's claim for permanent total disability for a back injury and the finding that he sustained only a 10 percent wage loss turned on the Commission's assessment of witness credibility and the weight of the evidence, and the denial had a substantial basis, but the wage-loss issue was remanded in light of the reversal of the impairment rating; the Commission did not find that the worker was motivated to return to the workforce, and the Commission considered his age, education, work experience, and the nature of the injury. Thompson v. Mt. Home Good Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d 873 (2014).

In a workers' compensation case, a claimant was not entitled to wage-loss disability because he had a bona fide offer to be employed at wages equal to his average weekly wage at the time of the accident, pursuant to this section; the claimant had the same hours and pay, and he was accommodated when he returned to work. Redd v. Blytheville Sch. Dist., 2014 Ark. App. 575, 446 S.W.3d 643 (2014).

In a workers' compensation case, there was no error in denying a claimant wage-loss benefits under this section because his employment opportunities had not been substantially reduced by his compensable injury; despite having a limited education and reading skills, the claimant could return to the same position. The findings were based on substantial evidence where the claimant had been returned to full duty without restrictions, he repeatedly stated that he wanted to return to work and was able to operate the same machinery, and he testified that he would be able to make the same wage as before the injury, but simply needed to run the machine from the other side. Gillham v. South Cent. Coal Co., 2015 Ark. App. 64 (2015).

Substantial evidence supported the finding that the worker's two back surgeries entitled her to a 14% impairment rating; the Workers' Compensation Commission found that the worker was entitled to a 25% wage-loss disability based on her young age, experience, and lack of interest in returning to work within her restrictions, and this was also supported by substantial evidence. Golden Years Manor v. Delargy, 2015 Ark. App. 309, 461 S.W.3d 725 (2015).

Workers' Compensation Commission's award of 23% wage-loss disability was supported by substantial evidence given claimant's lack of motivation and the dispute as to claimant's earning potential. Cooper v. Univ. of Ark. for Med. Sciences, 2017 Ark. App. 58, 510 S.W.3d 304 (2017).

Finding that a workers' compensation claimant was entitled to a 65% wage-loss award was supported by substantial evidence because the Workers' Compensation Commission considered the claimant's age, limited education, lack of transferable skills based on the claimant's work history, motivation, and unreliable functional-capacity evaluation, as well as other factors, and the Commission's opinion adequately discussed the rationale underlying that finding. Ark. Highway & Transp. Dep't v. Work, 2018 Ark. App. 600, 565 S.W.3d 138 (2018).

Workers' Compensation Commission's finding of 40% wage-loss disability was affirmed; the commission considered the claimant's education and work-related experience, the medical evidence and the claimant's physical limitations both before and after the work-related accident, and the fact that the claimant had elected to retire not only because of his physical limitations but also for financial reasons. Ark. State Military Dep't v. Jackson, 2019 Ark. App. 92, 568 S.W.3d 811 (2019).

Substantial evidence supported the findings that a worker's compensation claimant, who had worked as a correctional officer for 23 years, was entitled to 20% wage-loss disability in addition to a 3% anatomical rating and that the compensable back injury was the major cause of the disability, despite the employer's contention that an unauthorized surgery constituted a nonwork-related independent intervening cause that was improperly considered in awarding wage loss. The findings were based on proper wage-loss factors, the opinion adequately discussed the rationale, and the causation findings were supported by the claimant's testimony and medical evidence. Ark. Dep't of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 (2019).

Although appellants contended that claimant, a network support engineer, was barred from wage-loss disability benefits as he chose to retire only a few hours after reporting to work, the Workers’ Compensation Commission credited claimant's testimony that the ultimate reason for retiring was the increase in pain and the “dumbfoundedness” he experienced when back on the job and this testimony was corroborated; as it is the Commission's duty to weigh the evidence and not the appellate court, the Commission's decision that claimant was entitled to 50% wage-loss disability benefits was affirmed. Ark. DOT v. Abercrombie, 2019 Ark. App. 372, 584 S.W.3d 701 (2019).

—Odd-Lot Doctrine.

An employee who was injured prior to the applicable date of subsection (e) of this section, to the extent that he could perform services that were so limited in quality, dependability, or quantity that a reasonably stable market for them did not exist could be classified as totally disabled. This employee was said to fall within the former odd-lot category of disabled workers. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), rehearing denied, 40 Ark. App. 113, 846 S.W.2d 188 (1993), superseded by statute as stated in, Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999); Nelson v. Timberline Int'l, 57 Ark. App. 34, 942 S.W.2d 260 (1997).

Employees who are able to work only a small amount are not precluded from being considered totally disabled because they can work some, under the former “odd-lot” doctrine, if their overall job prospects are negligible. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), rehearing denied, 40 Ark. App. 113, 846 S.W.2d 188 (1993), superseded by statute as stated in, Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999).

Despite his argument that he made a prima facie case of entitlement to permanent total disability benefits under the former odd-lot doctrine, where claimant's treating physicians opined that the claimant could perform light duty work, the Commission was correct to find that he was not totally disabled. Nelson v. Timberline Int'l, 57 Ark. App. 34, 942 S.W.2d 260 (1997).

The odd lot doctrine did not apply to a claimant who, at the time he reached his maximum medical improvement, was a 28 year old high school graduate who could, according to the functional capacity assessment, perform, at a minimum, six out of every ten available jobs on the market. Goodwin v. Phillips Petro. Co., 72 Ark. App. 302, 37 S.W.3d 644 (2001).

Wage Loss Claim Not Permanently Barred.

The commission's finding with respect to subsection (b), that a claimant who has once returned to work at equal or greater wages is permanently barred from receiving benefits for a loss in wage earning capacity, even should her subsequent employment cease, unless the claimant is terminated for reasons relating to her compensable injury, was erroneous. Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).

Employee was properly awarded 10 percent permanent wage loss disability because while the employee returned to work as a truck driver following back surgery, that did not forever foreclose the employee from wage-loss disability benefits under subdivision (b)(2) of this section as the employee's return to work aggravated the employee's condition to the extent that the employee could no longer work. Enter. Prods. Co. v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).

Cited: Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952); McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961); Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W.2d 166 (1968); Bibler Bros. Lumber Co. v. Allen, 251 Ark. 593, 474 S.W.2d 116 (1971); Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W.2d 408 (1971); Coleman's Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978); Randall, Burkart/Randall Div. of Textron, Inc. v. Daniels, 266 Ark. 1060, 599 S.W.2d 392 (1979); Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ct. App. 1980); Hammer v. Intermed N.W., 270 Ark. 262, 603 S.W.2d 913 (1980); Weeks v. Coca Cola Bottling Co., 270 Ark. 151, 604 S.W.2d 566 (1980); Midwest Steel Co. v. Mulanax, 270 Ark. 914, 606 S.W.2d 606 (1980); Mountain Valley Superette, Inc. v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983); Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984); C.J. Horner Co. v. Stringfellow, 14 Ark. App. 138, 685 S.W.2d 533 (1985); Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985); Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); General Indus. v. Gibson, 22 Ark. App. 217, 738 S.W.2d 104 (1987); Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990); Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994); Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996); Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 927 (1999); Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003); Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004); Rutherford v. Mid-Delta Cmty. Servs., 102 Ark. App. 317, 285 S.W.3d 248 (2008); Maulding v. Price's Util. Contrs., Inc., 2009 Ark. App. 776, 358 S.W.3d 915 (2009); Myers v. City of Rockport, 2015 Ark. App. 710, 479 S.W.3d 33 (2015).