Wal-Mart Stores, Inc. v. Baysinger

• Decision Date: 01 July 1991
• Docket Number: No. 90-234,WAL-MART,90-234
• Parties: , 125 Lab.Cas. P 57,335, 6 IER Cases 961 STORES, INC., Appellant, v. Pam BAYSINGER, Appellee.
• Court: Arkansas Supreme Court

Page 463

812 S.W.2d 463

306 Ark. 239, 125 Lab.Cas. P 57,335,

6 IER Cases 961

WAL-MART STORES, INC., Appellant, v. Pam BAYSINGER, Appellee.

No. 90-234.

Supreme Court of Arkansas.

July 1, 1991.

Curtis L. Nebben, Fayetteville, for appellant.

Jim J. Johnson, Rogers, for appellee.

WILLIAM F. SHERMAN, Special Justice.

Pam Baysinger, the appellee, filed an action against Wal-Mart, Appellee's former employer, alleging that Wal-Mart terminated her for prosecuting a claim for injuries under the Workers' Compensation Act, in violation of public policy and statute. The complaint also alleged that Wal-Mart was liable for the tort of outrage. The case came to trial before a jury in Benton County Circuit Court on February 15, 1990. The trial court instructed the jury on wrongful discharge, that is, wilful discrimination in the hiring or tenure of work of an individual on account of her claiming workers' compensation benefits. There was no instruction on the allegation of outrage. The jury returned a verdict for Pam Baysinger against Wal-Mart in the sum of $24,000.00 in compensatory damages. The amount or measure of damages is not an issue on appeal.

Ms. Baysinger began working for Wal-Mart at its Warehouse No. 2 in Bentonville, Arkansas on January 14, 1982. She remained there until her termination on October 1, 1986. She received evaluations each year, sometimes two, which were generally very good, and pay increases with each evaluation, except for June, 1986, from $4.95 per hour to her final pay of $6.30 per hour. An evaluation in January, 1984 stated she would work in any area where needed. She was employed in a number of different capacities, including janitor.

On August 28, 1986, Ms. Baysinger sustained a back injury while lifting a box. She suffered an acute lumbosacral strain, which caused back stiffness. She was examined and treated by Dr. Robert E. Holder, after referral by Wal-Mart. On September 2, 1986, Dr. Holder placed Appellee on restrictions to lift no more than ten pounds, then on September 8, 1986, no more than twenty pounds. She received physical therapy and wore a lumbosacral corset. She was allowed to work on September 11 under the lifting restrictions and with modified duty. On September 12, she was sent home. She returned to work on September 17. On September 26, 1986, Appellee suffered a recurrence of the back injury reported on August 28, 1986. The physician found that she had a recurrent injury with "thoracic spine strain." She returned to work on September 29 and September 30, but was sent home both days because of her September 26 injury. She reported for work on October 1, 1986 and was told to see the personnel manager at Warehouse No. 2, Ernest Mika. Mr. Mika told her she was being terminated because she could not perform her job or any other job in Warehouse No. 2. On the exit interview form, Mr. Mika stated he had been advised by Dr. Holder that continued exposure to this type work could lead to more serious injury for Pam Baysinger. On another form, Mika wrote as the reason for termination that Ms. Baysinger was "unable to perform her job, limited medically," and that Wal-Mart did not expect to rehire Ms. Baysinger. On a notice of separation form it was stated she was not eligible for reemployment.

On the request for medical care form, Dr. Holder had noted the patient should consider another type work because of the recurrent nature of her injuries. He then noted she could return to her regular duties on September 29, 1986. Appellee came to Mika's attention when he saw the comments on the request for medical care form signed by Dr. Holder, which were not specific on her limitations. Mr. Mika's notes show that he discussed the case with a claims supervisor for the workers' compensation service company, who suggested they write Dr. Holder regarding the specific restrictions. Mr. Mika noted: "Depending on Dr. Holder's reply, we should consider placing her--if available in a lighter duty job and if none available termination." Mika directed Ms. Sheila Shepherd to find some work for Appellee at another location. Ms. Shepherd reported back that there was nothing available. On September 27, Mika wrote Dr. Holder requesting more specifics on the restrictions. Dr. Holder replied to Mika by letter dated October 1, received after the termination, observing that Appellee had a history of frequent injuries, "not always related to her low back," that she was a small girl and "obviously not physically built for heavy labor," and that it was difficult to know whether or not recurring injuries were due specifically to true accidents or were somewhat psychologic in nature. The doctor stated he understood that Wal-Mart had gone the "second mile in trying to find her a non-heavy duty source of employment." He observed that her 8th grade education placed "some limits on job options." The doctor recommended that Appellee "not do any lifting over twenty pounds" and do a "minimal amount of bending, stooping, squatting and pulling type work." He said she could do those things as long as it was not a repetitive job, in other words, "continuous heavy lifting." He did not say how long such restrictions should last. Dr. Holder testified he did not advise Mr. Mika that "continued exposure to that type of work" could lead to more serious injury, that he could not recall that Mika told him he could not find light duty work for Appellee, and that he did not know on October 1 Appellee was being terminated.

On October 3, 1986, Dr. Holder signed an Arkansas Rehabilitation Services General Medical Examination Record in an attempt to obtain assistance from the State for Appellee. The purpose was rehabilitation, to assist her in obtaining training for work not involving common labor. Under "orthopedic," the doctor stated she had "stiff back," could not "touch toes, squat;" she had a cautious gait; and her major disabling condition was chronic low back strain and an 8th grade education.

Mr. Mika testified that if Dr. Holder had given no restrictions, Appellee would still be working at Wal-Mart, as she was a good worker. To Mr. Mika, there was nothing in the documentation to indicate the restrictions were other than permanent and Appellee had permanent limitations for lifting, bending and stooping. He stated this was why a leave of absence did not apply to her.

Pam Baysinger had had no back problems before her employment with Wal-Mart. She had sustained back injuries on October 28, 1982 and June 6, 1983, for which she received medical benefits under workers' compensation. After her August 28, 1986 injury, Wal-Mart paid medical benefits and temporary total disability benefits from August 29, 1986 to September 21, 1986. The last payment of weekly benefits was made after her termination.

Appellant's first argument is that the Benton Circuit Court lacked jurisdiction over the subject matter because the Workers' Compensation Act provides an exclusive remedy for employee claims against employers and that there is no cause of action for wrongful discharge. Appellant cites Ark.Code Ann. § 11-9-105 that the rights and remedies of an employee against his employer under the Workers' Compensation Act are exclusive. Appellant cites two Arkansas cases. In Cain v. Union National Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986), this Court affirmed the dismissal of a complaint alleging an employee had suffered emotional distress, humiliation, and embarrassment from the respondent's bad faith in not settling a workers' compensation claim. Noting that there were statutory remedies for late payment, the Court held that the Workers' Compensation Act provides the exclusive remedy for such a claim. The Court followed its decision in Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976), the second case cited by Appellant, which also involved late payments and alleged purposeful delay in settling a valid claim. The Court stated that the rights and remedies provided in the Workers' Compensation Act were exclusive, and the lower court's dismissal of the complaint was affirmed. In Johnson, the employee contended the "retaliatory action on the part of employer-respondent for filing a workman's compensation claim is actionable in a court of law," but the Court declined to address the point. The Court is now prepared to reach this issue.

It is the general rule that "when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause." Griffin v. Erickson, 277 Ark. 433, 436, 642 S.W.2d 308, 310 (1982). Generally, "employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute." Griffin v. Erickson, supra, 277 Ark. at 436, 642 S.W.2d 308.

There are well-defined exceptions to this general rule. Four exceptions to the at-will doctrine under Arkansas law were identified by the United States District Court in Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487 (W.D.Ark.1982). The Arkansas Supreme Court recognized the public policy exception to the general rule in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), which involved the dismissal of Oxford, the employee, by Sterling Drug, Inc. Sterling Drug supervisors believed that Oxford had reported Sterling to the GSA for pricing violations, resulting in fines against Sterling in the sum of $1,075,000 in a 1984 settlement. Oxford sued Sterling Drug for wrongful discharge and outrage. The Court cited its decision in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 273, 596 S.W.2d 681 (1980), in which the Court recognized certain exceptions to the at-will doctrine, including discharge for exercising a statutory right, for performing a duty required by law, or "that the reason for the discharge was in violation of another well established...