where the claimant is a victim of a oime of violence. If a physical injury has caused the mental injury, the mental injury must be diagnosed by a licensed psychiatrist or psychologist and the benefit shall be limited to 26 weeks. Death caused by a mental injury is not compensable unless the death occurred within 1 year from the incident causing the mental injury. As a result of the amendments proposed by Section 8 to Ark. Code Ann. ยง11-9-109, it will be very difficult to prove that a mental injury is a compensable injury. As stated above, mental injuries are only compensable if accompanied by a physical injury. An argument advanced by the labor interests during the debate of HB 161S stated that Section 8 would preclude a fireman or a police officer from recovering benefits for psychological trauma. Without any accompanying physical injuries, they were probably right. To add insult to injury, even if a mental injury is accompanied by a physical injury, the benefits are limited to 26 weeks. A cardiovascular, coronary, pulmonary, respiratory or cerebrovascular accident or a heart attack is only compensable where the accident was the major cause of the physical harm. The injury or disease is not compensable if it i... shown that the work causing the injury or disease was not extraordinary and unusual to the employee's normal work or there is an absence of some unusual or unpredicted event. Stress will not be considered a relevant factor. Section 8 made it almost impossible to receive benefits for a heart attack. Most previous heart attack cases in which benefits were paid considered stress in assessing the causation of the compensable injury. Under Section 8, stress no longer will be considered. In addition, it must be shown that the claimant was involved in an event that was unusual and extraordinary from his normal job. Therefore, if a claimant's normal job involves lifting 50 pound drums, he will not be entitled to benefits if one day he has a heart attack while lifting those same 50 pound drums, even though he was under considerable stress due to a tight deadline for shipping those same drums. THIRD PARTY LIABILITY A claim under the workers' compensation law will not affect the right of an employee to bring an action against a third party for those same injuries. As stated above, a prime contractor is not considered a third party when being sued by an employee of a subcontractor. The employer is entitled to notice of the action 22
ARKANSAS LAWYER
SUMMER 1993
and the opportunity to join in the action. If the employer joins in the action and the claimant prevails, the employer is entitled to a 1st lien of 2/3 of the net proceeds recovered. An employer liable for compensation also has the right to maintain an action in tort against a third party responsible for the injury to his employee. The employer must give notice to the employee that he has the right to hire an attorney to represent his interest. The employee is entitled to any damages recovered after the cost of collection and the amount the employer paid for compensation has been deducted. In no event .hall the employee recover less than 1/3 of the amount recovered from the third party. Under the new language of Section 14, which amends Ark. Code Ann. ยง11-9410, notice of settlement of a third party action, whether maintained by the employee or employer, must be given to all parties with an interest in the claim. Does "all interested parties" include insurance carriers, unpaid medical providers, disability insurers, medicaid providers, the Social Security Administration or anyone who has paid benefits or provided services to the claimant?" Or, does "interested parties mean only persons who have intervened in the third party law uit. The distinction is very important. In another new provision to Ark. Code Ann. ยง11-9-410, an employer liable for compensation may also maintain a third party action against the employer's uninsured motorist coverage. The purpose of this right is to prevent a double recovery by the claimant. REHABILITATID One of the main purposes of the workers' compensation "reform" was to return the injured worker back to work. Under the old Act, an employee who was receiving permanent disability benefits and who had not been offered an opportunity to return to work was entitled to rehabilitation benefits. This remains the same under the new Act, but rehabilitation benefits have been increased from 60 to 72 weeks. However, if the employee fails to cooperate in the rehabilitation plan, he will not be able to receive benefits in excess of his actual permanent disability (Le. no wage loss disability). A problem which existed under the old act still lives under the new Act. It has been established by caselaw that a claimant undergoing rehabilitation is not entitled to the simultaneous payment of permanent partial disability payments. J4 Tht:: chief complaint about the