AR Code § 11-9-409 (2020)
2020 Arkansas Code|Title 11 - Labor and Industrial Relations|Chapter 9 - Workers' Compensation|Subchapter 4 - Employer Liability — Insurance|§ 11-9-409. Safety and health loss control consultative services

 (a) Workers' Health and Safety Division.  (1) The Workers' Compensation Commission shall establish a Workers' Health and Safety Division, hereinafter referred to as the “division”.  (2) The division shall collect and serve as a repository for statistical information on workers' health and safety. In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall analyze and use the information to identify and assign priorities to safety needs and to better coordinate the safety services provided by public or private organizations, including insurance carriers. In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall promote workers' health and safety through educational programs and other innovative programs developed by the division.  (3) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall coordinate or supervise the collection of information relating to job safety.  (4) The Chair of the Workers' Compensation Commission, the Secretary of the Department of Labor and Licensing, and the Insurance Commissioner shall function as an advisory committee to resolve questions regarding duplication of efforts, assignment of new programs, and other matters that need cooperation and coordination.  (5)  (A) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall publish or procure and issue educational books, pamphlets, brochures, films, videotapes, and other informational and educational material. Specific educational material shall be directed to high-risk industries and jobs and shall specifically address means and methods of avoiding high frequency but preventable workers' injuries. Other educational material shall be directed to business and industry generally and shall specifically address means and methods of avoiding common workers' injuries.  (B) Specific decisions as to what issues and problems should be addressed by such information shall be made by the division in cooperation and with the assistance of the Department of Labor and Licensing and the State Insurance Department and with commission approval after assigning appropriate priorities based on frequency of injuries, degree of hazard, severity of injuries, and similar considerations.  (C) Such educational materials shall include specific references to the requirements of state laws and rules and federal laws and regulations, to recommendations and practices of business, industry, and trade associations, and, where needed, to recommended work practices based on recommendations made by the division, in cooperation and with the assistance of the Department of Labor and Licensing and the State Insurance Department, for the prevention of injury.    (6) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall cooperate with employers and employees to develop means and methods of educating employees and employers with regard to workplace safety.  (7) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall encourage other entities to develop safety courses, safety plans, and safety programs.  (8) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall certify safe employers to provide peer review safety programs.  (9) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall advise insurance carrier loss control service organizations of hazard classifications, specific employers, industries, occupations, or geographic regions to which loss control services should be directed or of the identity and types of injuries or occupational diseases for prevention of the same to which loss control services should be directed and shall advise insurance carrier loss control service organizations of safety needs and priorities recommended by the division in cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department.    (b) Job Safety Information System.  (1) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall establish and maintain a job safety information system.  (2)  (A) The job safety information system shall include a comprehensive database that incorporates all pertinent information relating to each reported injury.  (B) The identity of the employee is confidential and may not be disclosed as part of the job safety information system.    (3) Employers shall file with the commission such reports as may be necessary. The commission shall promulgate rules and prescribe the form and manner of the reports.  (4) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division is authorized, empowered, and directed to obtain, from any state agency, data and statistics, including those compiled for the purpose of ratemaking.  (5) The division shall consult the Department of Labor and Licensing and any other affected state agencies in the design of data information and retrieval systems that will accomplish the mutual purposes of those agencies and of the division.    (c) Extra-Hazardous Employer Program.  (1)  (A) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall develop a program, including injury frequency, to identify extra-hazardous employers. The term “extra-hazardous employer” includes an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry, an employer whose experience modifier is identified by the commission as too high, and such other employers as may, following a public hearing, be identified as extra-hazardous.  (B) The division shall notify each identified extra-hazardous employer or the carrier for the employer that the employer has been identified as an extra-hazardous employer.    (2)  (A) An employer who receives notification under subdivision (c)(1)(B) of this section must obtain a safety consultation within thirty (30) days from the Department of Labor and Licensing, the employer's insurance carrier, or another professional source approved by the division for that purpose.  (B) The safety consultant shall file a written report with the division and the employer setting out any hazardous conditions or practices identified by the safety consultation.    (3) The employer and the consultant shall formulate a specific accident prevention plan that addresses the hazards identified by the consultant. The employer shall comply with the accident prevention plan.  (4) The division may investigate accidents occurring at the work sites of an employer for whom a plan has been formulated under subdivision (c)(3) of this section, and the division may otherwise monitor the implementation of the accident prevention plan as it finds necessary.  (5)  (A) Six (6) months after the formulation of an accident prevention plan prescribed by subdivision (c)(3) of this section, the division shall conduct a follow-up inspection of the employer's premises. The division may require the participation of the safety consultant who performed the initial consultation and formulated the safety plan.  (B) If the division determines that the employer has complied with the terms of the accident prevention plan or has implemented other acceptable corrective measures, the division shall so certify.  (C) An employer who the division determines has failed or refused to implement the accident prevention plan or other suitable hazard abatement measures is subject to civil penalties as follows:  (i) The commission may assess a civil penalty against an employer who fails or refuses to implement the accident prevention plan or other suitable hazard abatement procedures in an amount up to one thousand dollars ($1,000) per day of violation payable to the Death and Permanent Total Disability Trust Fund; and  (ii) Furthermore, the commission may petition the Pulaski County Circuit Court, or of the county where the business is located, for an order enjoining the employer from engaging in further employment until such time as the employer implements the prevention plan or abatement measure described above or makes payment of all civil penalties.      (6) If, at the time of the inspection required under subdivision (c)(5)(A) of this section, the employer continues to exceed the injury frequencies that may reasonably be expected in that employer's business or industry, the division shall continue to monitor the safety conditions at the work site and may formulate additional safety plans reasonably calculated to abate hazards. The employer shall comply with the plans and may be subject to additional penalties for failure to implement the plan or plans.  (7) An employer may request a hearing before the full commission to contest findings made by the division under this section.  (8) The identification as an extra-hazardous employer under this section is not admissible in any judicial proceeding unless the commission has determined that the employer is not in compliance with this section and unless that determination has not been reversed or superseded at the time of the event giving rise to the judicial proceeding.    (d) Accident Prevention Services.  (1) Any insurance company licensed to provide casualty insurance in the State of Arkansas and desiring to write workers' compensation insurance in Arkansas shall maintain or provide accident prevention services as a prerequisite to write workers' compensation insurance. The services shall be adequate to furnish accident prevention programs required by the nature of its policyholders' operations and shall include surveys, recommendations, training programs, consultations, analyses of accident causes, industrial hygiene, and industrial health services to implement the program of accident prevention services.  (2) Notice that services are available to the policyholder from the insurance company must appear in no less than ten-point bold type on the front of each workers' compensation insurance policy delivered or issued for delivery in the state.  (3) At least once each year, each insurance company writing workers' compensation insurance in Arkansas must submit to the division detailed information on the type of accident prevention services offered to that insurance company's policyholders. The information must include any additional information required by the commission.  (4) In cooperation with and with the assistance of the Department of Labor and Licensing and the State Insurance Department, the division shall conduct inspections to determine the adequacy of the accident prevention services required by subdivision (d)(1) of this section at least every two (2) years for each insurance company writing workers' compensation insurance in Arkansas.  (5) If the insurance company does not maintain or provide the accident prevention services required by this subsection or if the insurance company does not use the services in a reasonable manner to prevent injury to employees of its policyholders, the insurance company may be subjected to the same civil penalties as are assessable and enforceable against employers as set forth above in subdivision (c)(5)(C) of this section and shall be subject to suspension or revocation of license to do business in this state by the Insurance Commissioner.  (6) The commission shall employ the qualified personnel necessary to enforce this section.    (e) Immunity from Certain Liability.  (1) Except as provided in subdivision (d)(5) of this section, the insurance company, the agent, servant, or employee of the insurance company or self-insured employer, or a safety consultant who performs a safety consultation under this section shall have no liability with respect to any accident based on the allegation that the accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the insurance company or self-insured employer for the prevention of accidents in connection with operations of the employer.  (2) Provided, however, this immunity shall not affect the liability of the insurance carrier or self-insured employer for compensation or as otherwise provided in this chapter.    (f) Exclusive Remedy. This section does not create an independent cause of action at law or in equity.