dissenting. I agree that appellant was not entitled to benefits for medical services provided by Dr. Russell. I, however, dissent from the majority’s view that the Commission properly denied appellant’s claim for benefits under Ark. Code Ann. § ll-9-505(a)(l) (Repl. 2002).
Arkansas Code Annotated section ll-9-505(a)(l) 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 Workers’ Compensation 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 the refusal, for a period not exceeding one (1) year.
The purpose of § 11-9-505 “is to place an emphasis on returning the injured worker to work, while still allowing and providing for vocational rehabilitation programs when determined appropriate by the commission.” Ark. Code Ann. § ll-9-505(d). Before this section applies, a claimant must prove by a preponderance of the evidence that he sustained a compensable injury; that suitable employment within his physical limitations is available with the employer; that the employer has refused to return him to work; and that the employer’s refusal to return him to work is without reasonable cause. Torrey v. City of Ft. Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).
In Torrey, the injured employee was terminated after learning that the City of Fort Smith had no positions available that would accommodate the restrictions placed on his work activities. He was encouraged to apply for other positions with the City and was afforded the opportunity to interview for other positions, but he was not rehired by the City. While the Commission denied benefits in light of tbe City’s position that it did not hire the injured employee because there were others more qualified for the position, this court reversed and remanded for an award of benefits. We stated:
At a minimum Ark. Code Ann. § 11-9-505(a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary.
Id. at 231, 934 S.W.2d at 239-40.
The record in this case demonstrates a glaring failure by the employer to comply with either the terms or the spirit of the statute based on what we said in Toney. Rather, St. Vincent terminated the appellant one day after he returned to work from having been on Family and Medical Leave because, according to its witnesses, the employer could not afford to maintain the nuclear medicine department where he worked. Appellant was not transferred to a different department. He was not offered employment elsewhere within St. Vincent. There is no evidence that St. Vincent made any effort to determine what job openings, if any, matched appellant’s twenty-pound lifting restriction. Rather, the evidence shows that St. Vincent terminated appellant, tried to get him to sign an agreement that called his severance a voluntary resignation, and did so intending to extinguish appellant’s right to any further benefits (presumably including workers’ compensation benefits).
After discharging appellant, St. Vincent attempted to induce him to sign a document titled “Confidential Release” which, by its terms, was intended to forever release St. Vincent “from any and all possible liability” in exchange for one month’s base salary. The document that St. Vincent presented appellant misstated the fact of his termination and the circumstances surrounding its tender, as is readily discerned from the following numbered provisions of that document:
1. By executing this Confidential Release, Employee confirms that they [sic] voluntarily and irrevocably resign their [sic] employment with St. Vincent effective May 22, 2003, and they [sic] agree that their [sic] employment with St. Vincent will be forever terminated under the terms and conditions of this Confidential Release.
11. Employee expressly warrants, acknowledges and represents that: (a) They [sic] have been advised by St. Vincent that they [sic] may wish to consult with an attorney prior to executing this Confidential Release; (b) They [sic] have been afforded an opportunity to consider this Confidential Release for a period of twenty-one (21) days; . . .
12. Employee shall have a period of seven (7) days following their execution of the Confidential Release to revoke it, if they [sic] so choose, and this Confidential Release shall not be effective or enforceable prior to the expiration of that period. In the event the Employee exercises their [sic] right to revoke this Confidential Release, St. Vincent shall immediately and automatically be relieved of any responsibility to provide the considerations set forth in paragraph 2 of this Confidential Release [calling for payment of salary for one month].
Contrary to the language of the document that St. Vincent presented to appellant, he was discharged from its employ. He did not resign and had not sought to resign. Dent Smith informed appellant that his employment was terminated. LeRoy Walker tried to entice appellant to sign the release and term his separation a “voluntary resignation.” There is no evidence in the record that Smith, Walker, or anyone else informed appellant that he could resign his employment or that appellant sought to resign it. Furthermore, there is no proof that St. Vincent presented the release to appellant twenty-one days earlier or that anyone at St. Vincent had even discussed his possible separation from the employment before Smith informed appellant that his employment was terminated.
Although the majority may disregard or minimize the significance of these uncontroverted facts, these facts directly bear on the employer’s responsibility under § 11-9-505(a). Before the Commission determined whether the employer fulfilled its statutory responsibility, it should have analyzed the record in light of what the employer did and what it did not do. After all, § 11-9-505 obligates employers to engage in affirmative efforts aimed at returning injured workers to the workplace. Our decision in Toney made that obligation unmistakably clear.
Implicit in § ll-9-505(a) and our interpretation of that section in Toney is an expectation of a good-faith effort to facilitate an injured employee’s re-entry into the workforce where suitable employment is available. That good faith is conspicuously absent in this case. First, Smith and manager Ken Goad terminated appellant before they sent him to the human resources office. Second, they did not refer him to the human resources office for reassignment; rather, they sent him there to secure a release of claims against St. Vincent. Third, Walker did not offer the list of 300 “available” openings until after he attempted to secure a release and after he and appellant had further discussion about jobs within the St. Vincent system. Fourth, when Walker presented appellant with the list of openings, Walker did not discuss whether appellant would be hired for any of those jobs; nor did he indicate whether any of the positions met the twenty-pound lifting restriction appellant had been given.
The post-termination actions taken by St. Vincent were inconsistent with the conclusion that it acted in compliance with § ll-9-505(a). Although the Commission concluded that appellant made no effort to pursue any of these opportunities, the workers’ compensation act, and particularly § 11-9-505, places the onus of facilitating an injured worker’s re-entry into the workplace on the employer, not the employee. St. Vincent, which terminated appellant’s employment, should not be allowed to skirt its statutory obligation to facilitate appellant’s return to the workforce by relying on appellant’s reasonable belief that he would not be re-employed after its managers told appellant that he had been discharged. Further, an employer cannot meet its obligation by terminating an employee and by merely providing a list of jobs. That action merely places an injured employee back into a hiring pool of unemployed job applicants.
The majority also appears to be impressed by the stipulation that appellant’s position was eliminated purely for financial reasons and had nothing to do with any animosity toward appellant. However, in Toney, we rejected the employer’s contention that it did not rehire the claimant there because others were more qualified to fill the positions for which the claimant applied. Again, the employer still has a statutory obligation to facilitate the re-entry into the workforce.
Section 11-9-505 is designed to ensure that injured workers are returned to the workforce. Regardless of St. Vincent’s motives, it failed to facilitate appellant’s re-entry into the work force. Because the majority has decided that appellant is not entitled to benefits despite St. Vincent’s failure to facilitate appellant’s return to the workforce, I must respectfully dissent.
I am authorized to state that Judges Glover and Roaf join in this opinion.