2019 Arkansas Code
Title 11 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Subchapter 1 - General Provisions
§ 11-9-102. Definitions

(1) “Carrier” means any stock company, mutual company, or reciprocal or interinsurance exchange authorized to write or carry on the business of workers' compensation insurance in this state. Whenever required by the context, the term “carrier” shall be deemed to include duly qualified self-insureds or self-insured groups;

(2) “Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or of the spouse of the deceased, and a foster child;

(3) “Commission” means the Workers' Compensation Commission;

(4)

• (A) “Compensable injury” means:

  • (i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;

  • (ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:

    • (a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;

    • (b) A back or neck injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence; or

    • (c) Hearing loss which is not caused by a specific incident or which is not identifiable by time and place of occurrence;

  • (iii) Mental illness as set out in § 11-9-113;

  • (iv) Heart or cardiovascular injury, accident, or disease as set out in § 11-9-114;

  • (v) A hernia as set out in § 11-9-523; or

  • (vi) An adverse reaction experienced by any employee of the Department of Health or any employee of a hospital licensed by the Department of Health related to vaccination with Vaccinia vaccines for smallpox, including the Dryvax vaccine, regardless of whether the adverse reaction is the result of voluntary action by the injured employee.

• (B) “Compensable injury” does not include:

  • (i) Injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of nonemployment-related hostility or animus of one, both, or all of the combatants and which assault or combat amounts to a deviation from customary duties; furthermore, except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries;

  • (ii) Injury incurred while engaging in or performing or as the result of engaging in or performing any recreational or social activities for the employee's personal pleasure;

  • (iii) Injury which was inflicted upon the employee at a time when employment services were not being performed or before the employee was hired or after the employment relationship was terminated; or

  • (iv)

    • (a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.

    • (b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.

    • (c) Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee's body.

    • (d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician's orders did not substantially occasion the injury or accident.

• (C) The definition of “compensable injury” as set forth in this subdivision (4) shall not be deemed to limit or abrogate the right to recover for mental injuries as set forth in § 11-9-113 or occupational diseases as set forth in § 11-9-601 et seq.

• (D) A compensable injury must be established by medical evidence supported by objective findings as defined in subdivision (16) of this section.

• (E) Burden of Proof. The burden of proof of a compensable injury shall be on the employee and shall be as follows:

  • (i) For injuries falling within the definition of compensable injury under subdivision (4)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence; or

  • (ii) For injuries falling within the definition of compensable injury under subdivision (4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.

• (F) Benefits.

  • (i) When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter.

  • (ii)

    • (a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.

    • (b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.

  • (iii) Under this subdivision (4)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

  • (iv) Nothing in this section shall limit the payment of rehabilitation benefits or benefits for disfigurement as set forth in this chapter;

(5) “Compensation” means the money allowance payable to the employee or to his or her dependents and includes the allowances provided for in § 11-9-509 and funeral expenses;

(6) “Death” means only death resulting from compensable injury as defined in subdivision (4) of this section;

(7) “Department” means the State Insurance Department;

(8) “Disability” means incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury;

(9)

• (A) “Employee” means an individual, including a minor, whether lawfully or unlawfully employed in the service of an employer under a contract of hire or apprenticeship, written or oral, expressed or implied, and the individual's employment status has been determined by consideration of the twenty-factor test required by the Empower Independent Contractors Act of 2019, § 11-1-201 et seq.

• (B) The term “employee” shall not include:

  • (i) An individual who is both a licensee as defined in § 17-42-103 and a qualified real estate agent as that term is defined in section 3508(b)(1) of the Internal Revenue Code of 1986, including all regulations thereunder;

  • (ii) An individual whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer; or

  • (iii) An individual who is required to perform work for a municipality, county, state, or the United States Government upon having been convicted of a criminal offense or while incarcerated.

• (C) Any individual holding from the commission a current certification of noncoverage under this chapter shall be conclusively presumed not to be an employee for purposes of this chapter or otherwise during the term of his or her certification or any renewals thereof or until he or she elects otherwise, whichever time period is shorter.

• (D) Any reference to an employee who has been injured, when that employee is dead, shall also include his or her legal representative, dependents, and other persons to whom compensation may be payable;

(10) “Employer” means any individual, partnership, limited liability company, association, or corporation carrying on any employment, the receiver or trustee of the same, or the legal representative of a deceased employer;

(11) “Employment” means:

• (A) Every employment in the state in which three (3) or more employees are regularly employed by the same employer in the course of business except:

  • (i) An employee employed as a domestic servant in or about a private home;

  • (ii) An employee employed to do gardening, maintenance, repair, remodeling, or similar work in or about the private home or residence of the person employing the employee;

  • (iii) Agricultural farm labor;

  • (iv) The State of Arkansas and each of the political subdivisions thereof except as provided by §§ 6-17-1401 -- 6-17-1405, 14-26-101 -- 14-26-104, 14-60-101 -- 14-60-104, 19-10-101 -- 19-10-103, 19-10-202 -- 19-10-210, 19-10-401 -- 19-10-406, and 21-5-601 -- 21-5-610;

  • (v) A person for whom a rule of liability for injury or death arising out of and in the course of employment is provided by the laws of the United States;

  • (vi) A person performing services for any nonprofit religious, charitable, or relief organization;

  • (vii) Any person engaged in the vending, selling, offering for sale, or delivery directly to the general public of any newspapers, magazines, or periodicals or any person acting as sales agent or distributor as an independent contractor of or for any newspaper, magazine, or periodical; and

  • (viii) Any individual who is both a licensee as defined in § 17-42-103 and a qualified real estate agent as that term is defined in section 3508(b)(1) of the Internal Revenue Code of 1986, including all regulations thereunder;

• (B) Every employment in which two (2) or more employees are employed by any person engaged in building or building repair work;

• (C) Every employment in which one (1) or more employees are employed by a contractor who subcontracts any part of his or her contract; and

• (D) Every employment in which one (1) or more employees are employed by a subcontractor;

(12) “Healing period” means that period for healing of an injury resulting from an accident;

(13) “Insurance Commissioner” means the Insurance Commissioner of the State of Arkansas;

(14)

• (A) “Major cause” means more than fifty percent (50%) of the cause.

• (B) A finding of major cause shall be established according to the preponderance of the evidence;

(15) “Medical services” means those services specified in § 11-9-508;

(16)

• (A)

  • (i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.

  • (ii)

    • (a) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain.

    • (b) For the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.

  • (iii)

    • (a) Objective evidence necessary to prove physical or anatomical impairment in occupational hearing loss cases may be established by medically recognized and accepted clinical diagnostic methodologies, including, but not limited to, audiological tests that measure air and bone conduction thresholds and speech discrimination ability.

    • (b) Any difference in the baseline hearing levels must be confirmed with a subsequent test within the next four (4) weeks but not before five (5) days and being adjusted for presbycusis.

• (B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty;

(17)

• (A) “State average weekly wage” means the state average weekly wage determined annually by the Division of Workforce Services in the preceding calendar year pursuant to § 11-10-502.

• (B) If, for any reason, the determination is not available, the commission shall determine the wage annually after reasonable investigation and public hearing;

(18) “Time of accident” or “date of accident” means the time or date of the occurrence of the accidental incident from which compensable injury, disability, or death results;

(19) “Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported by the employer pursuant to section 6053 of the Internal Revenue Code of 1954 and the regulations promulgated pursuant thereto or the amount of actual tips reported, whichever amount is greater; and

(20)

• (A) “Widow” shall include only the decedent's legal wife, living with or dependent for support upon him at the time of his death.

• (B) “Widower” shall include only the decedent's legal husband, living with or dependent for support upon her at the time of her death.