dissenting. I dissent because I find that the Commission applied the wrong standard in awarding the temporary total disability benefits. As correctly pointed out by the majority, the Commission stated that “the basis for claimant’s employment separation is irrelevant in determining claimant’s entitlement to temporary total disability benefits.” I find this statement to be contrary to the law of this state.
I believe that if Mr. Thomaston was terminated by appellee for cause then he is not entitled to benefits. The majority states that stricdy construing Ark. Code Ann. § 11-9-526, “the controlling fact in this case is that Mr. Thomaston did not refuse employment; he accepted the employment and was later terminated not by his choice, but at the option of this employer.” Section 11-9-526 provides that a claimant who unjustifiably refuses suitable work will not be entitled to benefits. See ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1993). I see no significant difference between a person unjustifiably refusing suitable employment, and a person accepting suitable employment but then not performing the duties of the job. In effect, the person has refused employment by refusing to satisfactorily perform the job. I believe that a claimant has unjustifiably refused employment when he or she is offered suitable employment, accepts such employment, and then is subsequently terminated from employment not due to any disability but due to cause.
Under Arkansas State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), our supreme court stated that “[temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages.” “Temporary total disability is not based on the claimant’s healing period, but is instead awarded where the claimant is incapacitated because of injury to earn wages she was receiving at the time of the injury.” Johnson v. Rapid Die & Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). If appellee was terminated for cause he was not totally incapacitated due to his injury, as he earned wages until he was terminated for cause. I cannot find that an employer is liable for temporary total disability benefits if the claimant was terminated not based on a compensable injury but for cause. Under Ark. Code Ann. § 11 — 9— 1001 (Repl. 1996), the purpose of the workers’ compensation laws is to pay benefits to all legitimately injured employees, and to return the workers to the work force. The purpose is not to give claimants more rights than other employees, which is just what the majority has done. The majority’s opinion allows an injured employee who is provided with suitable light-duty employment to do anything he or she desires, not perform the duties of the job, and if the employer terminates the employee for cause the employer may have to pay temporary total disability benefits. Whereas, if a non-injured employee does the same thing as the injured employee they can be terminated for cause without a second-thought. The majority’s opinion in effect requires the employer to retain the injured employee when it would terminate the employee for cause if they were not injured, or be faced with the possibility of paying temporary total disability benefits if they do terminate the injured employee. I cannot agree with this.
In the present case, if it was found that appellee was wrongfully terminated then he would satisfy the requirements under § 11 — 9— 526 and Breshears, and as such is entitled to benefits. Unfortunately, the Commission did not decide this issue.
For the foregoing reasons, I would reverse and remand this case to the Commission for a finding on the issue of why appellee was terminated.
MEADS, J., agrees.