dissenting. Mr. Lunsford suffered an admittedly compensable back injury in 1983. As a result, two successive laminectomies were performed by Dr. MacDade.
While it is true that claimant testified that the March 7, 1988, incident occurred after he had gone for a “short horseback ride,” the history taken by Dr. MacDade states, “he had gotten back from a long sojourn on horseback, got off his horse, and then felt some back spasms which radiated around to the lower abdomen.” Certainly the Commission, as trier of fact, can choose to accept the statement made by the claimant to his physician on the date of the injury, rather than the claimant’s subsequent testimony.
The Commission had before it the claimant’s testimony that he believed he had cleared the horseback riding with Dr. MacDade. It also had before it a number of letters and reports from Dr. MacDade. Although these documents contained considerable advice about what the claimant should and should hot undertake to do from a physical standpoint, they contained no mention of horseback riding.
As I understand the Commission’s opinion, it held that even if the claimant had been told by his physician that it was all right to go horseback riding, the activity would -be unreasonable under the circumstances. In light of the settled rule that the Commission is not bound by medical opinion, McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989), and the principle that the Commission, like a jury, is not prohibited from using its collective common sense, I think the Commission could legitimately find that the claimant’s activities were unreasonable under the circumstances and therefore constituted an independent intervening cause of the fracture to his spine.
I respectfully dissent.
Cracraft, J., joins in this dissent.