The following guide is provided for quick reference and basic understanding of the Arkansas Workers’ Compensation system. This guide is not comprehensive and cannot address all issues of the system. Only a detailed consultation with an experienced Workers’ Compensation attorney can address all of your concerns.
Workers’ Compensation is a system of insurance designed to compensate employees injured on the job. A big part of this system is that employers are often shielded from liability, and filing a claim is the only legal remedy allowed, barring exceptional circumstances. Applying for Workers’ Compensation is meant to be a simple process, and employees do not have to prove fault for the accident to get compensation. There are various possible benefits, including money to cover medical expenses. You can typically file a claim as long as your injuries are considered compensable under the law.
If you were hurt at work and want to explore your legal options, an attorney can help you do so. For more information, contact Fayetteville, AR workers’ comp lawyer Ken Kieklak, Attorney at Law by calling (479) 316-0438 or contact us online. A version formatted for printing is also available.
An Overview of Workers’ Compensation in Arkansas
In 1939, Arkansas enacted the no-fault compensation law to provide prompt and automatic benefits to workers injured while performing their job. Before the Workers’ Compensation Law went into effect, any injured employee was required to file a lawsuit against their employer to recover medical costs and any lost wages. However, lawsuits took time, were expensive, and relied on judges and juries to determine fault and compensation. It was often an unfair system because of the resources available to a company.
Now, if an employee is unable to work because they were injured on the job, the workers’ compensation insurance policy provides benefits to cover medical expenses and money to compensate an employee for their lost income. Typically, these benefits go into effect immediately and without any bureaucratic red tape.
While most people working in Arkansas are protected under the Workers’ Compensation Law, there are some exceptions. For example, if a business has two or fewer employees, those employees might not be covered. Anyone employed as agricultural farm labor or domestic help is not covered as well. Likewise, any employee of a non-profit, charitable, or religious organization is also exempt. Additionally, maritime and railroad workers are covered under federal laws.
Workers’ Compensation Requirements in Arkansas
The Workers’ Compensation system imposes numerous requirements on employers and employees. Employers face requirements for carrying Workers’ Compensation insurance and when they need to file claims for injured employees. Employees also face requirements, usually about whether Workers’ Compensation is their exclusive remedy or if they can pursue other legal options. Our Bella Vista Workers’ Compensation lawyers can help you figure out how these requirements affect your case.
Under the law, employers are required to carry Workers’ Compensation insurance. Generally, insurance is not optional if an employer has three or more employees. According to Arkansas Code § 11-9-401(a), every employer must secure compensation for their employees to pay for disability and other compensable injuries arising from employment.
Failure to maintain Workers’ Compensation insurance not only presents a substantial risk to employees, but employers might face legal consequences. Perhaps the biggest concern among employers is that they will have to cover their employee’s expenses out of their own pocket if they do not have insurance.
One significant restriction imposed on employees who file for Workers’ Compensation is that it is their only permissible legal remedy. According to Arkansas Code § 11-9-105(a), when an employee is hurt on the job, the exclusive remedy is Workers’ Compensation. This means that injured employees cannot file lawsuits against their employers related to their injuries.
However, special circumstances might allow injured employees to sue their employers. Keep in mind that if you are suing your employer, there is likely no Workers’ Compensation insurance to take advantage of, or the case does not fall under the Workers’ Compensation system. Talk to our Bentonville Workers’ Compensation lawyers if you want to sue your employer but are unsure if you can.
What is Covered Under Arkansas Workers’ Compensation Law?
In Arkansas, workers are covered for accidental injuries that occur during the course of their employment. These injures could include external or internal bodily harm and must be caused by a specific incident that has an identifiable time and place.
To better understand what is meant by a specific incident, it might be easier to review the three exceptions to that requirement. First, any injury that is the result of rapid and repetitive motion is exempt, such as carpal tunnel syndrome. Next, back injuries that occur over time and are gradual in nature are not covered. Finally, hearing loss is not covered under the Worker’s Compensation Law.
If you suffered a heart attack, the accident must have been the primary cause of the physical injury to be eligible for benefits. For example, the heart attack was caused by an extraordinary level of exertion that was outside the ordinary scope of work. Or the heart attack occurred due to some unpredicted incident that was the major cause of the injury. The injury suffered does not have to be physical and could be a mental injury as long as it resulted from a specific work-related incident.
The law also covers employees who contract an occupational disease that arises during the course of their employment. However, workers are not covered for common diseases that also affect the general population, such as the flu.
This coverage goes into effect the moment you begin working and continues during the length of your employment. You are not required to work a set number of hours or days before the coverage is available.
People Not Covered by Workers’ Compensation in Arkansas
Under Arkansas law, all employees are covered by the Workers’ Compensation system. Although the term “employee” is broad, it is not without limits, and some people are legally not considered employees. If you are unsure of your employment status at the time you were hurt, call our Arkansas Workers’ Compensation lawyers for guidance.
According to Arkansas Code § 11-9-102(9), an employee is someone lawfully or unlawfully employed in the service of someone else. People working under a contract for hire, apprenticeship, or under written, oral, express, or implied agreement may be considered employees. A 22-factor test may be used in accordance with the Empower Independent Contractors Act of 2019 to determine if certain individuals should be considered employees.
While the definition of employee is broad, some people are excluded by law. For example, certain real estate agents are not considered employees and are not covered by Workers’ Compensation. Additionally, people whose job duties are casual and not in the normal course of their business, trade, or professional may be considered employees. For example, if someone is a plumber by trade and they agree to perform some yard work, they are not legally considered an employee regarding the yard work because it is not in the normal course of their occupation.
Along with that, people required to work for a municipality after being convicted of a crime (e.g., community service) are not considered employees of the municipality. If such a person were injured while working, they would not be covered by Workers’ Compensation.
Situations Where Workers’ Compensation Does Not Apply in Arkansas
There are certain situations where Workers’ Compensation might not apply, and injured employees are free to file personal injury lawsuits. Lawsuits can help injured workers recover the full value of damages not necessarily covered by the Workers’ Compensation. For example, non-economic damages like pain and suffering are often not accounted for when Workers’ Compensation benefits are paid out, but they may be covered in a lawsuit.
You can often circumvent the Workers’ Compensation system if the accident and your injuries were the results of deliberate actions taken by your employer. For example, if a maintenance worker fell from their ladder and became injured, they should be covered by Workers’ Compensation. However, if they fell because their boss became angry and pushed them, they can instead sue their boss for damages. Employers cannot intentionally harm employees and use the Workers’ Compensation as a shield against liability.
You can also sue your employer if they do not carry Workers’ Compensation insurance. Failure to carry the necessary insurance is illegal, and injured employees should not have to suffer because of their employer’s shortcomings. In these situations, employees often have few legal options other than lawsuits against their employers.
Our Fort Smith Workers’ Compensation attorneys can also help you file a lawsuit if a third party injures you. Third parties are not protected from liability like employers and may be sued even when Workers’ Compensation covers the case. For example, if an employee is hurt because of a defective power tool, the manufacturer of the defective tool would be a third party who can be sued for damages.
How Do I Apply for Workers’ Compensation Benefits in Arkansas?
If you suffer an injury on the job, you should report it to your supervisor or employer immediately. Be sure to provide your employer with a written statement that details the time, place, and nature of your injury. You should also include any information that will allow your employer to arrange medical treatment and complete any required reports.
You should not hesitate to report the incident. Even though your benefits are automatic, nothing will begin until you report the injury to your employer. It is essential to protect your rights, even if you believe the injury is slight. No work-related injury should go unreported. You are not a doctor and the full extent of your injury might not be readily apparent. A small cut on your finger could become infected, resulting in an unwanted amputation or other disability.
You are not required to apply for benefits. Your employer or insurance carrier should provide you medical treatment, disability payments if applicable, and file all the required reports with the Workers’ Compensation Commission. If your employer is not doing what is needed, contact our Arkansas workers’ compensation attorney immediately to protect your legal rights.
Types of Benefits Available Under Workers’ Compensation
Arkansas law provides injured workers with three types of workers’ compensation benefits.
First, an injured worker is entitled to medical treatment to care for their injury. This benefit covers more than just your doctor’s bills. An employee should recover for hospital costs, medication, x-rays, lab tests, crutches, and other expenses related to medical treatment. The employee is not responsible for any type of deductible and all reasonable costs and expenses for necessary services should be paid directly to the provider by the insurance carrier.
Depending on the injury, an employee might require rehabilitative services. Often, physical or occupational therapy is an extension of medical treatment. However, depending on the severity of the injury, a disabled employee might require vocational rehabilitation.
In addition to medical expenses, the Arkansas Workers’ Compensation law provides employees that are unable to work disability payments. Injured workers could also receive cash payments in the form of temporary disability payments. These payments are paid during the period an injured employee is healing and unable to work. In situations where an employee suffers a permanent impairment, such as losing the use of an arm, the employee will be paid permanent partial disability benefits after being cleared to return to work. If your injury prevents you from earning your regular salary, you might be entitled to compensation for your lost wages. In the case an injury is fatal, the surviving family dependents might be eligible for payments. In cases where an employee is unable to return to work, the disability could be permanent.
If you are injured and unable to work, disability benefits will not be paid during the first seven days if the disability does not last two weeks. If your injury results in a disability that last over fourteen days, your benefits will be paid starting from the day after your injury occurred.
Temporary total disability benefits are calculated at sixty-six and two-thirds percent of an injured employee’s average weekly salary. However, there is a set maximum that is set under state law. Additionally, any payments made under the Workers’ Compensation Law are tax-free.
General Information about the Arkansas Workers’ Compensation System
|Role of the Arkansas Workers’ Compensation Commission (AWCC)||The Arkansas Workers’ Compensation Commission is the state government organization that enforces the Workers’ Compensation rules in Arkansas. If your claim proceeds routinely, your interaction with the AWCC will be, at most, minimal.|
|Your cost||Workers’ compensation should be available to most employees. Your coverage is paid by your employer at no cost to you.|
|Worker coverage||Almost all workers in Arkansas are covered because most for-profit business entities consisting of 3 or more employees are covered. Exceptions to coverage include those employed in domestic help, agricultural farm laborers, and Arkansans employed by non-profit, religious, charitable or relief organizations. Railroad workers, maritime workers, and dock workers are not generally covered by Arkansas’ Workers’ Compensation program but by federal programs.|
|Coverage effective date||Your coverage begins the moment you start your employment and continues throughout.|
|Covered injuries||Accidental injuries which arise out of, and in the course of employment, cause internal or external harm to the body, are caused by a specific incident and are identifiable by time and place of occurrence. Repetitive motion injuries, gradual on-set back injuries, and hearing loss are exceptions to the general rule.|
Types of Disability Determinations
|Temporary total disability (TTD)||When an injury or injuries cause a complete disability that is not expected to be permanent, a designation of TTD may be issued. The maximum time for TTD is 450 weeks. Compensation at 66 and two-thirds percent of gross average weekly wage. State Maximum: $617/wk, Minimum: $20/wk.|
|Temporary partial disability (TPD)||When an injury or injuries cause a complete disability that is not expected to be permanent, a designation of TTD may be issued. The maximum time for TTD is 450 weeks. State Maximum: $617/wk, Minimum: $20/wk.|
|Permanent partial disability (PPD)||Permanent partial disability occurs when your injuries or condition results in only a partial disability, but that condition is not expected to improve. PPD injuries are scheduled for every body part excluding the back, neck and shoulders which are whole body injuries based on 450 weeks. The impairment percentage is multiplied by the total number of weeks corresponding to the rated body part. See §11-9-521 for schedule. State maximum: $463/wk, Minimum $20/wk.|
|Permanent total disability (PTD)||When disability is all-encompassing and not expected to improve a determination of PTD may be made. Caps on PTD benefits are described in the following section.|
|Death||Death benefits are available and up to $6,000 may be paid for funeral expenses. The amount of death benefits are computed as per AR Code §11-9-527. Death benefits are subject to the PTD cap as listed above.|
Beginning Your Workers’ Compensation Claim in Arkansas
|Starting your Workers’ Compensation claim||The worker must report the injury to his or her employer. The employer will then typically complete and submit AWCC Form 1– Employer’s First Report of Injury or Illness.|
|Workers’ Compensation Statute of Limitations||Your claim must be filed within 2 years of the injury date.|
|Claims challengeable?||Your employer may challenge or controvert your claim. Your employer must file its reply within 15 days by filing AWCC Form 2 – Employer’s Intent to Accept or Controvert Claim.|
|Formal claims available?||If you need to open a formal claim with the AWCC, as per ACA § 11-9-702, you or your attorney should file AWCC Form C – Claim for Compensation.|
|Expected waiting period for a hearing||30 to 60 days for your hearing. An administrative law judge (ALJ) must issue a decision within 90 days of the hearing date.|
Workers’ Compensation Benefits in Arkansas
|Types of benefits||The Workers’ Compensation system may provide compensation for medical expenses; like hospital bills, rehabilitative expenses; like physical therapy, and compensation for lost wages.|
|Preapproval?||Yes. You should always have medical services pre-approved or risk non-payment.|
|Emergency treatment?||If the situation is a true emergency, seek emergency medical care that your employer or insurer may be required to cover.|
|Initial choice of doctor||At the outset, your employer will have the choice of the treating physician. The physician will report on your medical condition by filing AWCC Form 3 — Physician’s Report.|
|Change of treating physician||Yes, you may change your treating physician however there is a set procedure for doing so. One should be extremely careful and work within the system for the change while complying with all instructions.|
|Procedure for change of doctor||A claimant may request to change their treating doctor by contacting the AWCC. However, you may only change your doctor once. If the employer is associated with a managed care organization (MCO), the doctor you select must be associated with the MCO or be your regular treating doctor. If the employer is not part of a MCO network, then the claimant may select a doctor associated with any certified MCO.|
|Benefit payment methods|| “Compensation shall be paid by check, by electronic funds transfer, or by state warrant.” Ark. Code Ann. § 11-9-801. Payment may be made by means of an electronic system if: |
If a fee will be charged to a claimant that method may not be implemented.
|Benefit caps||For claims prior to 1/1/2008 PTD benefits were capped at $75,000. Furthermore, benefits paid for PPD would also count against that cap. However, the benefits are now adjusted yearly based on when the injury occurred: |
|Settlement||Settlement is permitted and handled through a formal hearing before an ALJ.|
Glossary of Common Workers’ Compensation Terms
|AR Code||Arkansas Code|
|AWCC||Arkansas Workers’ Compensation Commission|
|Claim||A request for benefits due to a disability.|
|Controvert||In a Workers’ Compensation claims context, controvert means that your employer is denying liability for your Workers’ Compensation benefits.|
|CoP||Change of physician|
|DEN||Date Employer Notified|
|DoD||Date of Disability|
|DoI||Date of Injury|
|EE||The claimant who is applying for benefits or employEE.|
|FEIN||Federal Employer Identification number|
|IR||The insurance agent or adjuster|
|Major cause||50% or more of the reason for the injury or condition|
|MCO||Managed care organization|
|TPA||Third party administrator|
Medical Treatment Under Workers’ Compensation in Arkansas
When you are employed, you should be provided with a copy of your comprehensive rights to medical treatment. Your employer is required under law to provide all necessary and reasonable medical care. Under the Arkansas Workers’ Compensation Law, your employer is entitled to contract with a certified managed care organization and designate your initial medical provider.
An employee should not seek medical treatment on their own. Should this occur, your employer or insurer might not be required to pay for any medical treatment you received. However, you are entitled to seek authorization from your employer or the insurance provider to see your own doctor. It is important to coordinate treatment with your employer and your medical professionals. In most cases, any issues that arise could be addressed through cooperation between you, your employer, and the insurance carrier.
In some situations, if your benefits are denied, the insurance provider or your employer could still be liable for the cost of your medical treatment. If you had requested medical assistance in writing or your employer refused to refer you to a medical provider within 48 hours of receiving your written request, they could be held liable for any expenses you incurred.
There are also situations where an employee will require immediate emergency medical treatment and will not have the opportunity to report the incident to their employer. Under these circumstances, the treatment should be covered. If it is not, speak with our experienced Harris workers’ compensation attorney.
Changing Doctors Under Arkansas Workers’ Compensation Law
As stated above, your employer or insurance carrier is entitled to choose your medical provider. However, the Arkansas Workers’ Compensation Law has specific procedures in place that allow you to change doctors. If you request a change of physician and your employer or insurance company does not approve the switch, you have the right to file an appeal with the Workers’ Compensation Commission. If you fail to follow the rules and procedures regarding changing your physician, your request could be denied. Our Workers’ Compensation attorney will assist you during this process.
What to Do If There Are Mistakes or Errors With My Arkansas Workers’ Compensation Benefits
In most cases, if there is an error or a problem with your benefits, it can be handled rather routinely. Your workers’ compensation benefits are supposed to be automatic and the amounts paid are specified by law. However, mistakes and errors do occur. There are situations where benefits are denied or are less than what an employee believes they should be. When this does happen, the first course of action should be to contact your employer or insurance provider – in most situations, a phone call could fix the problem or help clarify the decision.
If talking with your employer or insurance carrier does not resolve the problem, you can speak directly with the Workers’ Compensation Commission. The commission’s office has trained staff members that are available to help you understand your legal rights and options regarding your benefits. The commission will schedule conferences between you and your employer or a representative from the insurance company to try and resolve any disputes.
If you are still unable to resolve your problem through a conference or mediation, you could file an appeal with the Workers’ Compensation Commission. Our Rogers workers’ compensation attorney is available to assist you with the appeal process. You will be required to file a “Form C” with the commission, who will review your case to determine if you were unjustly denied benefits. Your claim must be filed within two years from the date of your injury or the date of your last compensation payment.
Once your claim has been filed, it will be assigned to an administrative law judge (ALJ). The ALJ will conduct any further proceedings required to settle the matter. At this point, either side is permitted to hire legal representation. Our office strongly advises that, since all other avenues have failed to resolve the situation, you should have our experienced workers’ compensation attorney representing you during any hearings or other parts of the proceeding. If your benefits are denied at this level, you will unlikely receive the disability payments you might need.
Can I Keep My Job if I Receive Workers’ Compensation Benefits in Arkansas?
Another question that concerns workers who have suffered an injury is their job’s status once they can return to work. Under the Workers’ Compensation Law, an employer is prohibited from firing or discriminating against an employee who exercised their rights under Arkansas law. However, no provision in the Workers’ Compensation Law requires an employer to keep a job open while you are recovering from your injury. That does not mean you do not have legal recourse once you can return to work. An Arkansas employer that refuses to allow you to return to work without a reasonable cause could have to compensate you for the difference in your weekly wages and any benefits you should receive for one year. If you are experiencing any difficulty with returning to work after an absence due to injury, contact our Arkansas workers’ compensation attorney.
What to Do if Your Employer Retaliates Because You File for Workers’ Compensation in Arkansas
Ideally, filing a Workers’ Compensation claim should be a smooth process with cooperation from all parties involved. The system is designed to benefit injured employees and ease the burden of employers, but still, some employers do not want their employees to report their injuries. If you believe your employer is retaliating against you because you filed or are trying to file a claim, call our Arkansas Workers’ Compensation lawyers immediately.
Retaliation from an employer against an employee for filing a Workers’ Compensation claim is illegal. Injured employees have encountered various reasons employers do not want them to file. Perhaps your employer does not actually have any insurance, and they would rather fire injured employees before they can try to file a claim. In other cases, employers do not want any record of an on-the-job accident, especially if they know they do not maintain a safe work environment or are aware of numerous safety violations.
The first thing you should do if your employer is resisting your claims or threatening your job for filing a claim is call a lawyer. Your employer must show that their adverse action against you (e.g., firing, reducing hours, reducing pay) is for reasons unrelated to your accident and Workers’ Compensation claim.
Contact Our Arkansas Workers’ Compensation Attorney to Understand Your Legal Rights
Arkansas has developed a legal process to provide benefits to workers who are injured on the job. While your Workers’ Compensation benefits are supposed to go into effect automatically and immediately, mistakes and errors occur. For your free and confidential case review with our Springdale Workers’ Compensation lawyer, contact us at (479) 316-0438.