dissenting. The majority opinion runs afoul of the exclusive-remedy provision of the Workers’ Compensation Act. That provision makes no exception for a claim under the Arkansas Civil Rights Act (“ACRA”) based on a disability resulting from a compensable work-related injury. The majority’s analysis, based in large part on decisions in jurisdictions where the statutes differ from the Arkansas Workers’ Compensation Act, contains several flaws that cause it to ignore the clear command of the General Assembly.
Ms. Davis and the majority rely on the holding of Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996), which reversed the dismissal of a discrimination complaint cognizable under the ACRA. The complaint had been dismissed at the trial level for lack of subject-matter jurisdiction. We did not discuss the merits of the claim, but held that complaints based on the ACRA fall within circuit court jurisdiction. Some reliance is also placed upon a concurring opinion in the Malone case which stated that the exclusive-remedy doctrine of the Workers’ Compensation Act “in no way conflicts with or bars a properly established or alleged claim under the Civil Rights Act.” Id. at 387-88, 926 S.W.2d at 662 (Glaze, J., concurring). Even if that statement had been an obiter dictum found in the majority opinion in the Malone case, it would hardly have answered the question presented here.
Our Workers’ Compensation Act provides a remedy for an employee such as Ms. Davis. Arkansas Code Ann. § 11 — 9— 505(a)(1) (Repl. 1996) provides:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year.
Refusal to return an injured employee to suitable work is covered by that section regardless of the reason of the employer for doing so. The law thus provides a remedy for an employee who is discriminated against due to her injury, and the General Assembly has made that remedy exclusive. “The . . . remedies granted to an employee ... on account of injury . . . shall be exclusive of all other rights and remedies of the employee . . . .” Ark. Code Ann. § ll-9-105(a) (Repl. 1996).
It might be argued that Ms. Davis does not fit within the situation described in section ll-9-105(a) because she was returned to work during her healing period but was dismissed after the permanent restrictions on her activities were made known. Surely, however, we would not render a decision that would discourage employers from retaining injured employees at least until the extent of disability is finally determined.
In Reese v. Sears, Roebuck & Co, 731 P.2d 497 (Wash. 1987), overruled on other grounds by Phillips v. Seattle, 766 P.2d 1099 (Wash. 1989), cited by the majority opinion, the Supreme Court of Washington held that the Industrial Insurance Act, Washington’s workers’ compensation act, and the Law Against Discrimination, the State’s civil rights act, did not conflict. The Court concluded that the Washington legislature intended expressly to preclude the possibility that discriminatory actions would be protected from remediation because of earlier enacted laws. There is no provision in the ACRA indicating it was intended to trump a provision such as § 11-9-105(a).
In Cox v. Glazer Steel Corp., 606 So.2d 518 (La. 1992), the Louisiana Supreme Court noted, as did the Washington court in the Reese case, that the civil rights law and the workers’ compensation law were meant to remedy different injuries. While that may be so, it does not answer § ll-9-105(a). A Louisiana statute cited in the Cox opinion provided, “Nothing in this Chapter [Louisiana Workers’ Compensation Act] shall affect the liability of the employer, . . . under any other statute or the liability, civil or criminal, resulting from an intentional act.” LSA-R.S. 23:1032(B). The Louisiana workers’ compensation law is simply not exclusive of other statutory remedies, and that was the holding of the case.
The majority also relies on Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), where we held that a factor in determining whether the exclusive-remedy doctrine barred the action was whether the Workers’ Compensation Act provided a remedy for the injury at issue. In that case, the claimant, unlike Ms. Davis, was not an injured employee and had no remedy under the Workers’ Compensation Act. It is of no precedential value here.
The majority concludes that there is no workers’ compensation remedy available to Ms. Davis by construing § 11-9-505 to mean that a claimant must be currently receiving workers’ compensation benefits to qualify for additional benefits under this section. I do not agree. The section says that an employer who refuses to return an employee to work “shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal.” (Emphasis supplied.) In this instance, the benefits received “during the period of such refusal” would be zero to be subtracted from the average weekly wages lost, giving Ms. Davis the whole sum to be received as the difference for one year.
Ms. Davis was dismissed upon presentment of her permanent restrictions. She can pursue a remedy under § 11-9-505 by filing a workers’ compensation claim and can also petition under §11-9-107 for her employer to be penalized if she can prove discrimination. From the penalty Ms. Davis can collect attorney’s fees.
Under §ll-9-505(a)(l) Ms. Davis must prove (1) by a preponderance of the evidence that she sustained a compensable injury; (2) that suitable employment within her physical and mental limitations is available with the employer; (3) that the employer has refused to return her to work; and (4) that the employer’s refusal to return her to work is without reasonable cause. Torrey v. City of Fort Smith, 55 Ark. App. 226, 230, 934 S.W.2d 237, 239 (1996). In this case, Ms. Davis has alleged facts in support of each of the requirements.
Section 11-9-105 states that the remedies granted to an employee subject to the provisions of the workers’ compensation chapter shall be “exclusive of all other rights and remedies of the employee.” This Court has previously held that “other statutes must yield to the Workers’ Compensation Act because it is in the interest of the public policy to give that act priority as an exclusive remedy.” Cherry v. Tanda, 327 Ark. 600, 616, 940 S.W.2d 457, 462 (1997) (quoting from Helms v. Southern Farm Bureau Casualty, 281 Ark. 450, 664 S.W.2d 870 (1984)).
I respectfully dissent.
Brown, J., joins this dissent.