author: Tom Glaze, Justice. David Newbern, Justice, Robert L. Brown, Justice,

text:
    Sybil LOONEY, Executrix of the Estate of Carol Chamberlain, Deceased v. Dr. Michael BOLT, Dr. Munir M. Zufari, and Health Management, Inc., D/B/A Crawford Memorial Hospital
    96-1504
    955 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      H. Ray Hodnett and Eddie N. Christian, Jr., for appellant.

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: E. Diane Graham and J. Michael Cogbill, for appellee Munir Zufari, M.D.
   Tom Glaze, Justice.

This case represents another of a series of cases involving a medical injury which resulted in death and and the question as to whether the wrongful-death cause of action is controlled by the Medical Malpractice Act. Carol Chamberlain underwent surgery at the Crawford Memorial Hospital on September 25, 1991, which was allegedly undertaken by Dr. Michael Bolt and Dr. Munir Zufari without her informed consent and without her knowledge of alternatives available for her condition other than surgery. Chamberlain died on November 16, 1991, but Sybil Looney, executrix of Chamberlain’s estate, did not file suit against Dr. Zufari, Dr. Bolt, and the hospital until December 2, 1993 — more than two years after Chamberlain’s surgery and the alleged malpractice.

The trial court dismissed all of the estate’s claims based on summary-judgment motions. However, the Chamberlain estate brings this appeal from the lower court’s dismissal with prejudice against Zufari. The trial court’s reason for dismissing the estate’s suit against Zufari was that the estate’s cause of action is for wrongful death caused by medical injury and that Ark. Code Ann. § 16-114-203 (Supp. 1995) of the Medical Malpractice Act requires all acts for medical injury to be commenced within two years after the action accrues. Because the estate’s suit was filed after two years had expired, the trial court ruled the estate’s claim was procedurally barred.

In its argument for reversal, the Chamberlain estate concedes this court, albeit in split decisions, has held that the Medical Malpractice Act applies to all causes of action for medical injuries accruing after April 2, 1979, and, as to such causes of action, the Act shall supersede any inconsistent provision of law. The estate further acknowledges that this court has specifically held that the Medical Malpractice Act’s two-year limitations period conflicts with the three-year limitations period provided under the Wrongful Death Act and is therefore controlling where death ensues from medical injuries. See Hertlein v. St. Paul Fire Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996) (court in 4-3 decision where death ensued from February 2, 1992 medical injury, dismissed claim not filed until May 1994); Pastchol v. St. Paul Fire & Marine Co., 326 Ark. 140, 929 S.W.2d 713 (1996) (court, in a 5-2 decision where plaintiff filed wrongful-death action alleged from a medical injury on August 26, 1991, dismissed because belated complaint filed on September 7, 1993); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997) (court, in a 4-3 decision where alleged malpractice injury occurred on April 28, 1992, dismissed suit because complaint filed on July 11, 1994); Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997) (court, in a 5-2 decision where medical injury alleged on May 10, 1993, was dismissed as barred because complaint filed on June 11, 1996); see also Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993).

While the estate voices passing disagreement with this court’s foregoing holdings, it states that it does not ask us to overrule those decisions. Instead, the estate contends that, because Ms. Chamberlain’s medical injury occurred on September 25, 1991, and before any of the foregoing decisions, those holdings should not be retroactively applied to bar her claim. The estate submits that, at the time her claim accrued, reasonable doubt existed concerning whether the three-year wrongful-death statute or the two-year medical malpractice statute of limitations applied. Because Arkansas law generally favors applying the longer statutory period in these circumstances, the estate argues its entitlement to the three-year limitations period. See Dunlap v. McCarthy, 284 Ark. 5, 678 S.W.2d 361 (1984).

To support the estate’s argument that this court’s foregoing decisions should not apply to her injury, the estate cites Chevron Oil Company v. Huson, 404 U.S. 97 (1971), where the Supreme Court considered three factors when deciding whether a decision should be applied prospectively or retroactively. However, Arkansas has its own settled law on this subject, and this court considered that law in Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). See also Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986); Taliaferro v. Barnett, 47 Ark. 359 (1886). In Baker, the court discussed its June 9, 1992 decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), where the court overruled Jack son v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), holding the sixty-day notice provision (and ninety-day extension of limitations provision) of the Medical Malpractice Act were invalid because the sixty-day provision conflicted with Ark. R. Civ. P. 3. Baker argued her injury accrued before the Weidrick decision, and she was entitled to rely on the sixty-day notice provision and correlating ninety-day extension period because prior decisions had validated that law. The court rejected Baker’s argument because Weidrick had been decided when Baker filed her medical-injury action. The Baker court, citing Wiles, further relied on the principle that this court has long held that a decision of this court, when overruled, stands as though it had never been. See Wiles, 289 at 342.

The estate attempts to distinguish its situation from Baker and points out that the three-year wrongful-death limitations statute was not ruled in conflict with the two-year malpractice limitations period until Hertlein was decided on February 5, 1996, or after the estate filed its claim in decedent-Chamberlain’s behalf. The estate further argues it justifiably relied on this court’s earlier decision in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), where the court indicated Brown’s death was due to a medical injury, and as a consequence, the wrongful-death three-year statute of limitations applied. We reject the estate’s argument for two reasons.

First, we point out that the Brown I case was overruled in 1991 by Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991). Moreover, when Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), was decided on February 8, 1992, a caveat was issued by concurring opinion to the bench and bar underscoring that this court had not, as yet, decided whether the Medical Malpractice Act provisions applied in a case where a death results from a medical injury; it cautioned that it would be prudent to assume those provisions did apply. In sum, the earlier Brown I and Brown III cases offered the Chamberlain estate no precedent or comfort that the three-year wrongful-death limitations period applied to the estate’s case when it filed its action on December 2, 1993.

Second, we underscore that this court’s decision in Ruffins v. ER Arkansas, P.A., supra, was decided on May 17, 1993, and that holding, and the language contained therein, offered sufficient reasons for the Chamberlain estate to believe the two-year limitations statute would govern Ms. Chamberlain’s wrongful-death case. We acknowledge the estate’s contention that the language in Ruffins is overbroad and is not controlling of the estate’s case. In this respect, the estate submits that, while the Ruffins decision held the sixty-day notice provision of the Medical Malpractice Act governed all causes of action for medical injuries, it argues the holding in Ruffins did not actually specify that two-year limitations provision of the Act would control medical injuries where a death ensued. The estate also mentions that Ruffins was a 4-3 decision which, in itself, was reason for the estate to believe some doubt remained, concerning whether the two-year limitations period might apply to the estate’s wrongful-death action. We see no merit in the estate’s contentions.

The Ruffins court framed the issue covered there very broadly, saying, “Our case law has reserved ruling on the issue of whether actions for wrongful death resulting from medical malpractice cases are subject to the Medical Malpractice Act.” Ruffins, 313 Ark. at 180. Clearly this language undercuts any notion the Chamberlain estate may have had that Brown I was any precedent for the proposition that the three-year wrongful-death limitation applied when medical injuries were involved. The court then held as follows:

The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.

While only the notice provision was specifically brought into issue in Ruffins, the court, as a prerequisite, was compelled to decide the threshold issue that the Medical Malpractice Act governs all causes of action involving medical injuries, including those resulting in wrongful death. In sum, we fail to see any justifiable reliance on the estate’s part for it to assume the three-year limitations of the Wrongful Death Act would apply to its case. Nor are we aware of any reason to divert from our recent decisions that have consistently applied the Medical Malpractice Act retroactively to all causes of actions for medical injuries arising after April 2, 1979 •— the date of the Act’s passage.

The Chamberlain estate lastly argues that the Medical Malpractice Act, particularly the two-year limitations provision, is unconstitutional because it denies a person’s right to equal protection, due process, redress for wrongdoing, privileges and immunities, and violates Arkansas’s constitutional prohibition against special legislation. These same constitutional challenges were raised in Morrison v. Jennings, supra, and like the plaintiff in Morrison, the estate here did not obtain a clear ruling from the trial court concerning those constitutional claims. See Morrison, 328 Ark. at 283-284. Instead, the trial court merely stated in its order granting Dr. Zufari’s summary judgment motion “that the Medical Malpractice Act is constitutional.” Because the trial court’s ruling does not sufficiently address the estate’s constitutional claims, a review of those issues is precluded. Id.

In addition, the estate offers almost no legal citation of authority to support its arguments except to reference the constitutional provisions themselves. In other words, the estate offers no sound legal authority or convincing argument to support its multi-faceted constitutional claims. The estate does cite Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983), but that decision seems contrary to its constitutional arguments. There, this court considered the sixty-day notice provision against equal protection, due process, and special legislation claims. The Gay court concluded the vital question was one of reasonableness, and found no infringement upon the various constitutional provisions. The court held the legislature was not in error in determining that medical malpractice insurance rates were increasing and placing a heavy burden of medical expense on those who could least afford it. The court further stated the sixty-day notice requirement made it possible for the insurance carrier and the potential defendant to attempt to arrive at a settlement with the aggrieved person without the necessity of the parties incurring the expense of litigation. Id. at 8-9. In other words, the Gay court held that the Medical Malpractice Act was not arbitrary and capricious, but instead, the Act’s provisions were reasonably related to the legislative goal of reducing medical malpractice insurance costs.

Because no clear ruling was obtained on the estate’s constitutional arguments or sound legal authority and convincing argument presented, we affirm on these constitutional points.

Affirmed.

Newbern, Brown, and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. Sybil Looney filed her complaint more than two years from the date on which the appellees allegedly caused Carol Chamberlain’s medical injury but within three years of Ms. Chamberlain’s death. In the fall of 1991, when Ms. Looney’s cause of action accrued, her claim for wrongful death was subject to the three-year statute of limitations contained in the Wrongful Death Act, Ark. Code Ann. § 16-62-102(c)(Supp. 1995). Prior to the accrual of Ms. Looney’s cause of action, we had held in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987)(“ Brown F’), that the three-year statute governed claims .for wrongful death resulting from medical injury and that such claims did not have to be filed within the two-year statute contained in the Medical Malpractice Act, Ark. Code Ann. § 16-114-203 (Supp. 1995). We said the Medical Malpractice Act’s two-year statute was “irrelevant” to wrongful-death claims, and we reached this conclusion even though the Medical Malpractice Act provided that it applied to “all causes of action for medical injury occurring after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code An. § 16-114-202.

Between the time of our decision in Brown I and the accrual of Ms. Looney’s cause of action, we never questioned our holding that the three-year statute of limitations governed actions for wrongful death resulting from medical injury. The three-year statute was clearly in effect in the fall of 1991 when Ms. Looney’s action accrued, and Ms. Looney complied with the statute by filing her complaint on December 2, 1993.

Although it is undisputed that Ms. Looney filed her claim in accordance with the law as it existed when her cause of action arose, the majority believes the claim was properly dismissed as untimely because it was filed more than two years from the date on which the appellees allegedly caused Ms. Chamberlain’s medical injury. The Court in Brown I had held that the two-year statute was not applicable to the type of claim filed by Ms. Looney, and Brown I was the controlling law at the time Ms. Looney’s claim arose. However, according to the majority, foEowing our decision in Brown I, we rendered three decisions after Ms. Looney’s cause of action had accrued but before her complaint was fEed that repudiated Brown I and established the applicabEity of the two-year statute to claims for wrongful death resulting from a medical injury. In the wake of these decisions, the majority says, Brown I stood “as though it had never been,” and it was therefore unreasonable for Ms. Looney to rely on that case in waiting more than two years from the date of Ms. Chamberlain’s surgery to fEe suit against the appeEees.

The majority’s reasoning is flawed in several respects. First, the majority errs by suggesting that the statute of limitations in effect when Ms. Looney’s claim was filed on December 2, 1993, is controEing. As many jurisdictions have recognized, “ [t]he statute of Emitation in effect when a cause of action accrues governs the time within which a civil action must be commenced.” Rauschenberger v. Radetsky, 745 P.2d 640, 642 (Colo. 1987). See also Chase v. Sabin, 516 N.W.2d 60, 61 n.2 (Mich. 1994) (“The pertinent statute of limitations is the one in effect when the plaintiff s cause of action arose.”), citing Winfrey v. Farhat, 170 N.W.2d 34 (Mich. 1969). See Matter of Estate of Weidman, 476 N.W.2d 357, 364 (Iowa 1991); Department of Health & Welfare v. Engelbert, 753 P.2d 825, 826 (Idaho 1988); Cavanaugh v. Abbot Laboratories, 496 A.2d 154, 158 (Vt. 1985); Dade County v. Rohr Industries, Inc., 826 F.2d 983, 989 (11th Cir. 1987); Canadian Indent. Co. v. K & T, Inc., 745 F. Supp. 661, 663 (D.Utah 1990); Cooper v. Summer, 672 F. Supp. 1361, 1364-65 (D.Nev. 1987). As mentioned, the statute of limitations in effect when Ms. Looney’s wrongful-death action accrued was the three-year statute contained in the Wrongful Death Act. Ms. Looney complied with that statute, and it is irrelevant whether her claim was timely under any conflicting limitations provision in effect on December 2, 1993.

The majority suggests that Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995), supports the application of the statute of limitations in effect when Ms. Looney filed her complaint on December 2, 1993. In the Baker case, the issue was whether the Trial Court was correct to apply retroactively our decisions in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), and Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), which, respectively, invalidated the notice and 90-day-extension provisions contained in Ark. Code Ann. § 16-114-204 (1987). As the majority observes, the Weidrick case had been decided at the time Ms. Baker filed her complaint. Ms. Baker asserted that Weidrick and Thompson should not have been applied retroactively to bar her claim because her cause of action had accrued prior to the date of these decisions.

With very little discussion, we rejected Ms. Baker’s argument and upheld the retroactive application of Weidrick and Thompson to her claim. We noted that those cases “had been decided when the trial court entered its decision in this case,” we referred to a supposed “long-standing practice of applying our decisions retrospectively,” and we said that Ms. Baker had not demonstrated any “justifiable reliance” on an “old rule of law.” Baker v. Milam, 321 Ark. at 238, 900 S.W.2d at 211. We further intimated that, in other cases, we had applied the Weidrick case to actions that had accrued prior to the date of that decision. We emphasized that the Trial Court had “correctly applied the decisional law of this court as it existed when it decided appellant’s case.” Id.

It was wrong for us to suggest that the Trial Court’s retroactive application of Weidrick and Thompson was correct simply because those cases were in effect at the time the Trial Court rendered its decision. Although the Weidrick case was on the books when Ms. Baker filed her claim, we did not adopt a clear rule that the statute of limitations in effect at the time a complaint is filed, rather than the statute in effect when the cause of action accrues, is controlling. If the Baker decision is to be so interpreted, it should be unceremoniously and immediately overruled.

The majority suggests that the Baker case “relied on the principle that this court has long held that a decision of this court, when overruled, stands as though it had never been.” Although we did not refer to this “principle” in the Baker case, we have recited it in other cases, often in conjunction with a statement that our “long-standing practice” is to apply our decisions retroactively. We do, of course, apply our decisions retroactively when they are declarations of what the law has always been rather than decisions that overrule or change the law. One need only review our most recent decisions to see that, when our decisions establish new rules of law, we apply them prospectively only. See, e.g., Union Pacific R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997).

We have “acknowledged the need, when overruling prior case law, to recognize the validity of actions taken in faith upon old decisions while stating the rules to be followed in the future.” Wiles v. Wiles, 289 Ark. 340, 342, 711 S.W.2d 789, 791 (1986). Clearly, where a party has demonstrated reliance on an overruled case, we have not treated the case as if it never existed. See also Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 136, 258 S.W.2d 551, 557 (1953)(“Even though such retroactive judicial pronouncements are permitted by the constitution, they are manifestly contrary to a sense of fair play.”)(supp. op. den. reh’g); Oliver v. State, 323 Ark. 743, 749, 918 S.W.2d 690, 692 (1996) (“We conclude that fairness dictates a prospective application of our holding. Oliver could justifiably have relied on the cases now overruled.”).

Our approach to this issue is, and should be, thus largely consistent with that of the United States Supreme Court as expressed in Chevron Oil v. Huson, 404 U.S. 97 (1971). A decision should be applied prospectively if, among other things, it establishes “a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed,” or if a retroactive application of the decision will “produce substantial inequitable results” or “injustice or hardship.” Id. at 106-07 (citations omitted). The majority shrugs off the Chevron Oil case, but we have followed it in at least two previous decisions. See, e.g., Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991); American Trucking Ass’ns, Inc. v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988).

In any event, the notion that “an overruled case is to be treated as if it never was the law” is clearly outmoded; the more modern view is that this principle should be rejected as a “myth.” Annotation, Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 1383 (1966). See also Chevron Oil v. Huson, 404 U.S. at 107 (“We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights.”)(citation omitted).

The second flaw in the majority’s reasoning is its conclusion that three of our cases decided prior to the filing of Ms. Looney’s claim on December 2, 1993, overruled Brown I and established the applicability of the two-year statute over the three-year statute. Even if the majority is correct in its suggestion that the controlling statute of limitations is the one in effect when Ms. Looney filed her claim on December 2, 1993, it is clear that the law in effect at that time was still the three-year statute.

The majority contends that Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991); Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992)(“Brown III); and Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), reversed Brown I and rendered applicable the two-year provision. These cases could not have had the effect attributed to them by the majority. The Bailey case overruled our holding in Brown I that the injury sustained by the deceased was a “medical injury” within the meaning of the Medical Malpractice Act, but it did not discuss, let alone disturb, our holding in Brown I that the three-year limitations provision applied to actions for wrongful death resulting from medical injury.

In Brown III, we again said that an action for wrongful death resulting from a medical injury was governed by neither the notice provision nor the two-year statute of limitations contained in the Medical Malpractice Act. We emphasized that, “[b]ecause this is a wrongful death action, compliance with the medical malpractice statutes ... is irrelevant.” Brown v. St. Paul Mercury Ins. Co., 308 Ark. at 363, 823 S.W.2d at 909. In a concurring opinion, Justice Glaze observed that the question of the Medical Malpractice Act’s applicability to actions for wrongful death resulting from a medical injury had not been “fully developed and argued in this appeal.” Id. at 364, 823 S.W.2d at 910 (Glaze, J., concurring). The concurring opinion cautioned attorneys to assume that the Medical Malpractice Act, and the notice provisions in particular, would in fact apply to such actions. The question, however, is whether Brown III overruled Brown I and established the applicability of the two-year statute. Whatever the efficacy of the “caveat” issued in the concurring opinion, the holding in Brown III unquestionably maintained the status quo established in Brown I and did nothing to suggest that the three-year statute was no longer applicable to actions for wrongful death resulting from a medical injury.

Likewise, nothing in the Ruffins case altered the rule established in Brown I that the three-year statute applied to the type of claim brought by Ms. Looney. To the extent that the Ruffiins case could be viewed as changing the applicable statute of limitations from the three-year provision to the two-year provision, under the Chevron Oil, Wiles, and Crisco cases, the decision should not be applied retroactively to bar Ms. Looney’s claim. The majority asserts that we have applied Ruffins retroactively in past cases. Even if that assertion is true, it provides no basis for applying the case retroactively here in view of the fact that our decisions in the cases cited by the majority do not reflect that the plaintiffs urged a prospective-only application of the case.

If the controlling statute of limitations were the one in effect at the time a claim is filed, here is what could happen. A claimant whose claim arises when a three-year statute of limitations is in effect thinks she has three years within which to file it. She may wish to delay filing her complaint for' a variety of reasons, for example, to allow time to ascertain the extent of her injury. More than two years after the claim arose, the General Assembly by statute, or this Court by decision, changes the law to say a two-year limitation applies. The claim is barred. Nothing could be more unfair, and that is why the other jurisdictions cited above hold that the limitations period in effect at the time the claim arose applies. The only fair rule is simply this —• if a decision changes the law it should be applied prospectively; if not, it should be applied retroactively.

The Court will likely remain divided on the issue of whether the two-year statute or the three-year statute should apply to actions for wrongful death resulting from medical injury. Despite the division on that issue, we should all agree, at the very least, that the timeliness of a plaintiff s cause of action should be determined with reference to the law as it existed when the cause of action accrued. We should not penalize Ms. Looney for changes in the law that she could not have foreseen. Because Ms. Looney complied with the law existing when her cause of action arose, as well as the law existing when her claim was filed, we should allow her to pursue her claim.

I respectfully dissent.

Thornton, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. I continue in my belief that- Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), did not decide the statute-of-limitations question at issue in the instant case. That issue was not squarely addressed by this court until Hertlein v. St. Paul Fire Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996). In any case, I respectfully dissent for the reasons stated in my dissenting opinion in Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997) (J. Brown, dissenting).

       This court has consistently applied the Ruffins decision retroactively to prior alleged medical injuries in the Hertlein, Pastchol, and Morrison cases.

       Regarding its special legislation argument, the estate does refer to Knoop v. The City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), but mentions only generally the definitional statement, “a law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation it would operate . . . .”

       We note that the estate offers argument to distinguish Gay by stating the entire Medical Malpractice Act is unconstitutional because its goal can no longer be met since the sixty-day notice provision of the Act was invalidated in Weidrick. Again, the estate, except to reference a dissenting opinion, offers no legal authority to support its argument, challenging the Act.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. David Newbern, Justice,

license: Public Domain

text:
    Cynthia DAVIS v. DILLMEIER ENTERPRISES, INC.
    97-360
    956 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      Sexton & Fields, P.L.L.C., by: William J. Kropp III, for appellant.

      Gary W. Udouj, for appellee.
   Donald L. Corbin, Justice.

Appellant Cynthia Davis appeals the judgment of the Sebastian County Circuit Court dismissing with prejudice her complaint against Appellee Dillmeier Enterprises, Inc., for discrimination in violation of the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to -108 (Supp. 1995). The trial court dismissed Appellant’s complaint for lack of subject-matter jurisdiction, holding that Appellant’s claim was covered by the Workers’ Compensation Act, Ark. Code Ann. §§ 11-9-101 to -1001 (Repl. 1996). This case presents an issue of first impression requiring statutory interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(i) & (vi). The sole issue raised by Appellant is whether an employee who is discriminated against based upon a disability resulting from a work-related injury may sue her employer under the Arkansas Civil Rights Act. We find that such suit is permissible, and we reverse.

The relevant facts, which are not in dispute, are set out in the complaint as follows. Appellant was employed by Appellee at its facility in Fort Smith beginning in September 1993. In October 1993 and also in April 1994, Appellant sustained bilateral carpal tunnel syndrome, which was caused by the rapid and repetitive motion in Appellant’s work-related environment. Appellant’s injuries were accepted as compensable, and she completed her rights under the workers’ compensation laws by joint petition filed with the Arkansas Workers’ Compensation Commission on November 28, 1995. After her injuries were accepted as compensable, Appellant was placed under active treatment from two physicians and underwent epineurolysis and decompression for her injuries in both March and May 1995. During the time she was under active treatment, Appellant continued working for Appellee and was able to perform the essential functions of her job, with or without reasonable accommodations, under limited duties or restrictions. Specifically, in a status report dated June 21, 1995, Appellant was instructed by her primary physician to wear a splint, sling, or brace and was restricted from performing any repetitive motion and any gripping, pulling, pushing, or lifting of items weighing in excess of zero pounds for a period of four weeks. Similarly, Appellant was advised by Dr. Kenneth Rosenzweig on that same date as follows:

I would like for her to continue her rehab [ilitation] efforts and try some light duty job if available — that should be with her padded gloves on, no excessive pressure in the palm of her hand, and avoiding any heavy gripping, pushing, pulling and/or repetition for at least another month and at that time, things should be well enough to go back to her regular job. This should be on a trial basis and if she is unable to tolerate it despite surgical repair, then she may be forced to do something less intensive.

Two months later, on August 22, 1995, Appellant was given a full and complete release from treatment and rehabilitation by both physicians, with noted permanent restrictions. Particularly, Appellant was advised to refrain from any repetitive motion of any activity seventy-one degrees, to continue restrictive activities, and to pursue job rotation to avoid any overuse in any one particular mode. Appellant was assigned a rating of five percent permanent physical impairment in each upper extremity. On that same date, after having obtained her release from treatment, Appellant reported to work, where she was immediately terminated from employment by Appellee.

As a result of her termination, Appellant brought an action against Appellee for discrimination based upon a physical disability, in violation of the Arkansas Civil Rights Act. Appellant asserted in her complaint that Appellee terminated her despite the fact that she had been previously performing the essential functions of her job and despite the fact that her permanent impairments were less restrictive and less severe than those initially indicated by her treating physicians. Appellant claimed damages in the form of lost wages, mental anguish, and loss of dignity. She also asked for punitive damages in the amount of $200,000.

Appellee filed a motion to dismiss Appellant’s- complaint on the ground that exclusive jurisdiction of her claim was clearly vested in the Arkansas Workers’ Compensation Commission, specifically pursuant to section ll-9-505(a)(l). After hearing argument from both sides, the trial court dismissed with prejudice Appellant’s complaint, reasoning that it was the General Assembly’s intent that the remedies provided under the Workers’ Compensation Act were to be exclusive.

On appeal, Appellant argues that her claim is cognizable under the Arkansas Civil Rights Act. She contends that workers who are discriminated against because of a disability from a work-related injury are not entitled to less protection under the law than are workers who are disabled by other means. She contends further that the Workers’ Compensation Act was never intended to be a vehicle for protecting a worker’s civil rights, and that the damages available under the Arkansas Civil Rights Act are more complete than those offered under the Workers’ Compensation Act. In support of her argument, Appellant relies on this court’s holding in Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996).

In Malone, the appellant had filed a complaint in circuit court against his employer for retaliatory discharge under the Workers’ Compensation Act and for discrimination in violation of the Arkansas Civil Rights Act. The trial court dismissed the complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. There, as in the present case, the appellant argued that his civil rights claim was cognizable in circuit court and that the trial court had thus erred in dismissing with prejudice his complaint for lack of subject-matter jurisdiction. This court did not directly address the merits of that argument, but nonetheless held that the complaint should have been dismissed without prejudice, to allow the appellant to amend his complaint to include the specific facts, as opposed to bare conclusions of law, in support of his claim. This court stated:

While we are somewhat sympathetic to appellant’s contention that he has asserted two distinct causes of action based on two distinct statutes, on this limited record we cannot fully discuss the merits of appellant’s arguments for reversal of the trial court’s rulings regarding subject-matter jurisdiction. Suffice it to say that because appellant has asserted a cause of action in circuit court based in part on the Arkansas Civil Rights Act of 1993, we reverse that part of the order dismissing the complaint for lack of subject-matter jurisdiction.

Id. at 386-87, 926 S.W.2d at 662 (emphasis added). It is this language that Appellant relies on in support of her assertion that her claim is actionable in circuit court. Additionally, Appellant points to a concurring opinion in Malone. It was stated unequivocally 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.

Appellee, on the other hand, asserts that Appellant’s claim is limited to the remedy provided under section 11-9-505, which addresses an employee’s rights when the employer refuses to return the injured employee to work. Appellee asserts further that while the Arkansas Civil Rights Act generally addresses the rights of disabled persons to obtain and hold employment, the Workers’ Compensation Act specifically addresses the rights of employees who were injured on the job to return to work. Accordingly, Appellee asserts that the specific remedies provided in the Workers’ Compensation Act must prevail over the general remedies available under the Arkansas Civil Rights Act.

In response to Appellee’s argument, Appellant contends that the issue in this case is not that Appellee refused to return her to work after her injury; rather, she contends that the action filed in circuit court under the Arkansas Civil Rights Act is a separate and distinct cause of action based upon Appellee’s decision to terminate her because of her physical disability. Appellant contends that this is not a case of Appellee’s refusal to return her to work, because she had been allowed to return to work after her injuries, during the time she was receiving physical rehabilitation and was under medical restrictions.

The initial question then is whether this case is one of discrimination on the part of the employer in terminating an employee based upon her disability or, rather, whether it is one of the employer’s refusal to return the employee to work after having suffered a work-related injury. Should we determine that this case presents an issue of employer discrimination, we must next determine whether there is an adequate remedy for such discrimination available to Appellant under the Workers’ Compensation Act. If, on the other hand, we should determine that this case concerns the employer’s refusal to return the injured employee to work, we should affirm the trial court’s dismissal with prejudice of Appellant’s complaint, as her exclusive remedy would be found in section 11-9-505 of the Act. For the reasons set out below, we conclude that this case presents an issue of employer discrimination, rather than a situation where the employer has refused to return the injured employee to work.

Section 16-123-107(a) of the Arkansas Civil Rights Act of 1993 provides in pertinent part:

The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(1) The right to obtain and hold employment without discrimination^]

As previously noted, the issue presented by this appeal is one of first impression in this State. As such, we look to cases from other jurisdictions for guidance. The Supreme Court of Washington recognized that, in addition to obtaining workers’ compensation benefits, an employee has the right to file suit against the employer for discrimination based upon a physical disability. 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). The court found that there was no conflict between the Industrial Insurance Act (“HA”), Washington’s workers’ compensation act, and the Law Against Discrimination, the state’s civil rights act. The court reasoned that under the workers’ compensation law, the appellant-employees sought recovery for their out-of-pocket costs attributed to specific physical injuries arising out of their employment, but that, in contrast, under the civil rights law, the appellant-employees claimed that they were injured, “not by the physical workplace injuries that gave rise to their respective disabilities, but by a particular employer action taken months after they became disabled.” Id. at 502. The court held:

It is the employer response to the disabled worker that is at issue. Appellants’ claimed injuries in this action turn exclusively on the employers’ deliberate behavior. For purposes of the Law Against Discrimination, it does not matter how the handicap arose; only the employer’s response to the handicap matters.

Id. at 502-03. In concluding that there was no conflict between the two statutory schemes, and thus no need to choose between giving full effect to either act, the court stated:

In sum, we hold that appellant employees’ discrimination actions are not barred by the IIA exclusive remedy provision. Appellants claim to have suffered two separate injuries — a workplace physical injury and a subsequent injury arising from the employers’ alleged handicap discrimination. Because the injuries (1) are of a different nature, (2) must arise at different times in the employee’s work history, and (3) require different causal factors (an IIA claim is indifferent to employer fault, a discrimination claim requires such fault), the two injuries cannot be “the same injury.” Since the Legislature intended the IIA and the Law Against Discrimination to address the two separate injuries alleged by the appellants, no conflict exists between the two statutes in question.

Id. at 503.

Similarly, in Cox v. Glazer Steel Corp., 606 So.2d 518 (La. 1992), the Supreme Court of Louisiana held that an employee who had previously settled a claim for an industrial accident could sue the former employer for discrimination against the handicapped. The court applied the same reasoning expressed by the Washington Supreme Court that the two statutory schemes have different bases: Specifically, the workers’ compensation principle excludes the concept of employer fault, but “the Civil Rights Act for Handicapped Persons is fault-based legislation, intended to prevent discrimination, prejudice and intolerance.” Id. at 519-20. The court went on to conclude that the purposes of the two laws were also different, stating:

The worker’s compensation law provides compensation for accidental industrial injury or death. Guaranteeing civil job rights for the handicapped is intended to assure the handicapped equal employment opportunity. The two pieces of legislation are directed at distinct problems.

Id. at 520. It should be noted that the Louisiana decision also turned on the fact that its workers’ compensation act specifically provides that it does not bar other statutory causes of action. That distinction notwithstanding, we find the reasoning expressed by the court to be persuasive. We turn now to a related decision from this court.

In Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), we determined that an action filed in circuit court was not barred by the exclusive-remedy provision of the Workers’ Compensation Act where the injury was not compensable and was beyond the scope of coverage of the Act. The facts of that case were that the plaintiff s deceased husband was killed in a one-vehicle trucking accident while in the course of his employment with Gerald Johnson Trucking Company. The plaintiff brought suit in circuit court against the insurance company and its claims adjuster on the grounds that the adjuster had made misrepresentations to her causing her to refrain from embalming her husband’s body and proceeding with the funeral. She claimed that she had experienced severe and extreme mental anguish as a result of those misrepresentations. The insurance company and its adjuster argued that the plaintiff s claim was barred by the exclusive-remedy provision of the Act. We held that, “we cannot construe Anna Smith’s claims of misrepresentation and extreme mental anguish to be an aggravation of an initial, compensable injury suffered by her husband.” Id. at 342, 947 S.W.2d at 385. We then acknowledged that the pertinent issue was whether the lack of a remedy under the Act necessarily answered the question of whether the circuit court lacked jurisdiction to hear the plaintiffs claim. In an attempt to answer that question, we turned to the writings of Professor Larson for guidance:

If. . . the exclusiveness defense is a “part of the quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance,” it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee’s point of view, rights of action for damages should not be deemed taken away except when something of value has been put in their place.

Travelers, 329 Ark. at 343, 947 S.W.2d at 385-86 (quoting 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 65.40, at 12-55 (1997) (footnotes omitted)). We concluded that permitting the plaintiffs claims in circuit court was entirely consistent with Professor Larson’s teachings:

If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is for recovery for physical injury or death, . . . the action should be barred even if it can be cast in the form of a normally non-physical tort.

Id. at 344, 947 S.W.2d at 386 (quoting 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 68.34(a), at 13-180 (1997) (footnote omitted)). Thus, from the decision in Travelers, it is clear that in determining whether an action involving a work-related injury may be filed in circuit court, an important consideration is whether the Workers’ Compensation Act provides a remedy to the plaintiff.

In the case at hand, we conclude that there is no such remedy available to Appellant under the Act for her claim of injury resulting from her termination from employment with Appellee. Neither section 11-9-505 nor section 11-9-107 provide a remedy to Appellant in this instance. 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 commission, and in addition to other benefits, shall be hable 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.

We construe the plain language of that provision as providing benefits in addition to those workers’ compensation benefits already being received by the claimant. Such construction is evident, as the statute provides to the injured employee the difference between the compensation benefits being received and the average weekly wages lost during the period of refusal. Clearly, the combination of compensation benefits and additional benefits are designed to pay the employee a total amount equal to his or her average salary, thus making the employee whole. From the circumstances presented in this case, Appellant would not qualify for additional benefits under section 11-9-505 because she is no longer receiving any compensation benefits for her injury.

Moreover, the facts of this case do not describe a situation where the employer has refused to return the injured employee to work. Appellant had in fact already been returned to work during the time that she was receiving medical treatment and compensation benefits. It was only upon Appellant’s reporting to work after having been released from treatment, but having sustained a permanent impairment to both upper extremities, that Appellee terminated her. Appellant’s termination thus cannot be viewed as a refusal by Appellee to return her to work; rather, it can be viewed only as a termination. Accordingly, the benefits contemplated by section 11-9-505 do not offer this Appellant any remedy for her injuries.

Similarly, section 11-9-107, which provides for administrative and criminal penalties against an employer who engages in discrimination, does not provide a remedy to Appellant. Section 11-9-107 was intended by the legislature to be a remedy for willful discrimination by the employer done in retaliation for the employee’s having sought compensation under the Act. That section provides in pertinent part:

(a)(1) Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of the individual’s claim for benefits under this chapter, or who in any manner obstructs or impedes the filing of claims for benefits under this chapter, shall be subject to a fine of up to ten thousand dollars ($10,000) as determined by the Workers’ Compensation Commission.
(2) This fine shall be payable to the Second Injury Trust Fund and paid by the employer and not by the carrier. [Emphasis added.]

Section 11-9-107 was amended by the legislature in 1993 in order to preserve the exclusive remedy of the Workers’ Compensation Act by eliminating the common-law remedies for retaliatory or wrongful discharge. See section ll-9-107(e). In the present case, Appellant does not allege, nor has Appellee contended, that she was fired in retaliation for having sought workers’ compensation benefits. To the contrary, the information provided in the complaint demonstrates that Appellant’s injuries were accepted as compensable by Appellee and that benefits were completed by joint petition to the Commission. Thus, any remedy offered by section 11-9-107 is inapplicable to the facts of this case.

In sum, we conclude that there is no remedy under the Workers’ Compensation Act for an employee who is terminated from his or her job on the basis of a disability. Thus, the exclusive-remedy provision of the Act does not preclude Appellant from bringing an action under the Arkansas Civil Rights Act based upon Appellee’s alleged discrimination in terminating her on the bases of her permanent restrictions and impairments. In this respect, we agree with the reasoning espoused by the Washington Supreme Court that it matters not how the disability came about; rather, the focus should be upon the subsequent deliberate action by the employer in terminating the employee based upon a disability. Additionally, we are persuaded that the rights and remedies provided by both Acts are considerably different and serve to fulfill different purposes. Appellant has alleged two separate injuries ■— one being a work-related physical injury, for which she has received workers’ compensation benefits, and one being a subsequent nonphysical injury arising from Appellee’s action in terminating her based upon her physical disability. The first injury is exclusively cognizable under the Workers’ Compensation Act, while the subsequent injury is of the type envisioned by the Arkansas Civil Rights Act of 1993.

Accordingly, we reverse the decision of the trial court dismissing with prejudice Appellant’s complaint, and we remand this case for further proceedings. We note that by our holding today, we make no decision as to whether Appellant has established that she has a “disability” within the meaning of that term as used in the Arkansas Civil Rights Act, section 16-123-102(3). Nor do we reach the issue of the reasons for Appellant’s termination from her employment with Appellee. We hold only that Appellant may proceed with her claim under the Arkansas Civil Rights Act.

Reversed and remanded.

Newbern and Brown, JJ., dissent.

David Newbern, Justice,

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.