dissenting.
I dissent because I believe that neither the mandate rule nor the law of the case governs the resolution of this case. The majority opinion sets out the factual and procedural history faithfully. However, I disagree with the majority’s ultimate conclusion that our prior opinion clearly held that Harris was not protected by the exclusive-remedy provision.
When our mandate was issued, the Workers’ Compensation Commission attempted to follow our direction, yet read it to only allow suit against Erin, Inc. After Johnson filed a motion to modify, because he interpreted the mandate to allow suit against Harris also, the Commission responded by issuing three separate opinions. The “majority” (in this case a lone | ^commissioner) found that our mandate also allowed suit against Harris and modified the previous order. The second commissioner joined in the modification, but found that our opinion was not clear. The dissenting commissioner read our mandate to hold that Harris was protected by the exclusive-remedy provision. The issue now before our court is not whether the Commission followed our mandate, but more precisely — what our mandate required.
While a lower court (or, in this case, the Commission) is bound by the mandate rule, our court is bound by the law-of-the-case doctrine. As such, in order to resolve the appeal currently before us, we must first consider if we are so bound. Matters once decided upon appeal become law of the case and govern the court of appeals upon a subsequent appeal. Glover v. Glover, 15 Ark. App. 79, 81, 689 S.W.2d 592, 594 (1985). However, the question is always open as to what matters were “decided on appeal.” Id., 689 S.W.2d at 594. In this case, based on the three commissioners’ opinions and the parties’ divergent motions and responses, it is evident that no clear mandate exists. In fact, the parties each “followed” our mandate to divergent (and mutually exclusive) ends. Based on the inherent lack of clarity in our prior decision, neither the mandate rule nor law of the case should prohibit us from reexamining our prior opinion.
The only means by which Harris may be sued in tort in this case is by use of the dual-persona doctrine. Everyone agrees that Harris is protected by the exclusive-remedy provision of the workers’-compensation law as an employer in his role as owner of Arkansas Steel Erectors. His role (or persona) as owner of Erin, Inc., the owner of the crane, is at issue. The dual-persona doctrine makes an employer vulnerable to suit in tort if he possesses a second |,¡-.persona completely independent of his status as employer. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). The Arkansas Supreme Court officially recognized and adopted the dual-persona doctrine in Thomas by City National Bank of Fort Smith v. Valmac Industries, Inc., 306 Ark. 228, 812 S.W.2d 673 (1991).
Subsequent to Thomas, the Arkansas General Assembly passed Act 796 of 1993, which completely revised our state’s workers’ compensation law. The current version of our law states that “[t]he rights and remedies of the employee ... shall be exclusive of all other rights and remedies of the employee[.]” Ark.Code Ann. § 11-9-105(a) (Repl.2002). Moreover, the Act provides that “[n]o role, capacity, or persona of any employer, principal, officer, director or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter!)]” Ark.Code Ann. § ll-9-105(a). In sum, the Act is now the sole and exclusive source of an employee’s rights and remedies “regardless of the multiple roles, capacities, or personas the employer may be deemed to have.” Ark. Code Ann. § ll-9-105(a). To make it even clearer, our general assembly legislatively overruled Thomas by passing a law stating that “this section is to preserve the exclusive[-]remedy doctrine and specifically annul any case law inconsistent herewith, including but not necessarily limited to ... Thomas v. Valmac Industries, 306 Ark. 228, 812 S.W.2d 673 (1991).” Ark. Code Ann. § ll-9-107(e) (Repl.2002).
The law in Arkansas is clear. Our mandate should offer corresponding clarity. Once Harris was deemed to be “an employer” based on his ownership of Arkansas Steel Erectors, |1fihe came under the protection of the exclusive-remedy doctrine regardless of any other persona or role he maintained. Whether this is a majority view, minority view, good law, bad law or even constitutional (none of which is raised or argued), we are bound by it. I would therefore reverse the decision of the Workers’ Compensation Commission.