Can Injured Janitor who Kept Working get PPD Benefits?

What Do You Think?

In Arkansas, depending on an injured worker's age, education, and experience, she may be entitled to permanent partial disability benefits in excess of her percentage of permanent physical impairment. A recent case addresses an exception to that rule.

A school custodian who was 62 and had a 10th-grade education injured herself, including her back, while waxing and stripping a floor at work when she slipped and fell on her head.

The janitor kept working for the school for the same or better pay, but her doctor gave her the green light to continue only with many restrictions. She couldn’t lift anything weighing more than 10 pounds, for instance.

After the injury, the school would have her do a variety of tasks, like picking up trash, straightening classrooms, working in the cafeteria, and even going on guard duty. She said the school never offered her a permanent job that was within her restrictions.

In September 2021, she was declared to have reached maximum medical improvement and received an impairment rating of 25 percent. She said the school still didn’t offer her a permanent job that was within her restrictions. An ALJ denied her request for PPD benefits and wage-loss disability benefits. The Workers' Compensation Commission adopted that decision, concluding that the district offered her a job by continuing to keep her employed, that her work duties were within her restrictions, and that she never complained about her job.

Looking to stay compliant in Arkansas or any other U.S. state? Head to Simply Research.

In considering claims for PPD benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's:

• Age;
• Education; 
• Work experience; and 
• Other matters reasonably expected to affect the employee's future earning capacity.

However, so long as an employee, subsequent to her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than what she was earning at the time of the accident, she is not entitled to PPD benefits in excess of the percentage of permanent physical impairment.

Was the custodian entitled to PPD benefits?

A. Yes. The school never offered her a permanent job.

B. No. The school continued to employ her after her injury.

If you selected B, you agreed with the court in Gainey v. Genoa Sch. Dist.,  No. CV-24-633 (Ark. Ct. App. 05/28/25), which held that the janitor wasn’t permanently disabled.

The court acknowledged her argument that she did not receive a bona fide offer of employment after she had reached maximum medical improvement. That was beside the point, though. Under Arkansas law, a claimant is barred from wage-loss benefits when after her injury, the claimant returns to work or receives a bona fide offer of work at the same rate of pay. 

Here, the custodian returned to work after her injury at the same or better pay; thus, the Commission correctly denied her request. Also, the Commission determined that the school district offered her employment after her injury and that she was employed within her job restrictions. It also found that she accepted the job without complaint.

The court affirmed the Commission.

Share This Article: