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Another injury

Court says injured workers can go to Ohio.

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A recent state Court of Appeals decision is so unfavorable to injured workers that it “perverts fairness,” according to a dissenting judge. The case will further agitate injured workers and their lawyers, who have complained for several years that the state's workers compensation laws have been tilted against employees by the legislature and a pro-employer Workers Compensation Commission.

In a 4 to 2 decision, the court ruled Oct. 3 that Edward Williams of Mountain Home couldn't pursue a workers compensation claim in Arkansas against his employer, Johnson Custom Homes of Mountain Home, because he'd accepted workers compensation benefits from the Ohio Bureau of Workers Compensation. Johnson had contracted with an Ohio company, Paysource, to handle its payroll, and Williams had signed a form saying that any claim for work-related injury would go to Ohio. He said later that he'd been told he wouldn't receive a paycheck unless he signed.

After he was injured, Williams began receiving benefits, though he had considerable difficulty in dealing with the Ohio Bureau. But when he tried to amend his claim, on the advice of a doctor, the request was denied. When he then tried to pursue his claim in Arkansas, the Workers Compensation Commission said that he couldn't, and the Court of Appeals agreed.

Judge Robert J. Gladwin wrote in the majority opinion that “Appellant [Williams] is literate, educated and worked in management. He admitted that he had the agreement for several days before signing it and returning it … He had plenty of time to ask questions before signing. We hold that even had appellant failed to read the document, he made an election of remedies in Ohio by taking affirmative steps to pursue benefits from the Ohio Bureau.”

Judges Wendell Griffen and Sam Bird dissented. Griffen wrote that the majority “turns a blind eye on the bad-faith actions of the employer, which led to appellant pursuing his workers' compensation claim in a forum where he had no legitimate contacts. Because I consider such bad-faith actions contrary to the public policy upon which the workers' compensation system is based and fundamentally unconscionable, I must dissent.”

“It is inconsistent with both due process and the public policy of the State of Arkansas to enforce a coerced ‘agreement' whereby an Arkansas employee is forced to pursue workers' compensation benefits from an Arkansas employer for a compensable Arkansas injury in a different state with which the employee has no connections,” Griffen wrote. “Such an agreement violates public policy, deprives Arkansas workers from the protection of Arkansas workers' compensation laws, and is patently unconscionable. It perverts fairness to hold that employers can meet due process requirements for minimum contacts by coercing employees to sign unconscionable agreements that deprive Arkansas employees of the right to prosecute their claims for Arkansas injuries before the Arkansas Workers' Compensation Commission.”

Williams' attorney, Rick Spencer of Mountain Home, was predictably outraged by the majority decision. Spencer is one of the few Arkansas lawyers who still represents a significant number of workers comp claimants — other lawyers have found the field no longer profitable — and he's been highly critical of the commission and former governor Mike Huckabee, who appointed two of the three commissioners. (Before Gov. Mike Beebe took office in January, all three commissioners were Huckabee appointees.) Spencer said the Williams decision would allow all Arkansas employers to evade workers compensation claims by hiring out-of-state payroll companies. “How many injured workers will have the travel money to go to a WCC hearing in the state of Washington?” The decision will be appealed to the Arkansas Supreme Court, he said.

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