Safety and OSHA News

Light duty refused by injured worker; can she get workers’ comp benefits?

An employer offered light duty to an injured worker who had work restrictions. The employee refused to take the job, claiming it wasn’t within her doctor’s work restrictions, and she applied for workers’ comp benefits. Did a court say she should receive benefits?  

Felecia Davenport worked as an order filler at a Wal-Mart Distribution Center in Arkansas. On Nov. 14, 2014, Davenport suffered an injury to her right thumb and shoulder while trying to pull a box off a shelf. She was diagnosed with a right-shoulder contusion and sprained right thumb.

Wal-Mart drew up a temporary alternative duty assignment (TAD) for Davenport doing “label backings,” in which she sat and went through labels to make sure they were all placed on boxes.

The last day Davenport reported for work was Dec. 13, 2014. She said she couldn’t perform the light duty work because it caused her pain. A doctor provided revised work restrictions: no reaching above shoulder level, no repetitive upper extremity actions, and no pushing, pulling, or carrying.

Davenport signed the TAD which was for label backing, but noted she didn’t agree with the assignment because it involved repetitive work. She also stated she was willing to work as long as it was within doctor’s orders. She applied for temporary total-disability benefits (TTD) through workers’ comp. Wal-Mart denied the request.

An administrative law judge found Wal-Mart had at all times made suitable employment available to Davenport within her physical restrictions, therefore she wouldn’t receive TTD.  The Arkansas Workers’ Compensation Commission affirmed that decision. Davenport appealed to a state court.

Davenport argued the job offered to her wasn’t within the doctor’s restrictions because it was repetitive. A Wal-Mart HR representative admitted the label backing job was repetitive.

But the appeals court noted that the light-duty job was repetitive for the wrist. Davenport suffered a shoulder injury, and the job wasn’t repetitive for the shoulder, according to the ALJ’s findings.

The court quoted Arkansas law which says:

“If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justified.”

Although Davenport said the work offered by Wal-Mart wasn’t within her doctor’s restrictions, the job wasn’t repetitive for the body part that was injured and for which her restrictions were designed: her right shoulder, according to the appeals court. Therefore, the court upheld the previous decision that Davenport wasn’t entitled to TTD.

(Felecia Davenport v. Wal-Mart Stores Inc.Arkansas Court of Appeals Division I, No. CV-18-147, 10/17/18)

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Comments

  1. This is a tricky one, and I don’t agree with the courts. Anyone who has had a shoulder (or any serious joint) injury knows that articulations in limbs are not discrete individual items. If the worker had a shoulder injury I could quite easily understand that sticking labels all day would seriously aggravate her shoulder, even if it wasn’t directly involved in the action. Plus, shouldn’t her lawyers have concluded that in the Dr.’s recommendation “no repetitive upper extremity actions”, the wrist is included in the definition of “upper extremity”? Seems pretty clear to me.

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