concurring. Jobe contends that the record does not contain a substantial basis for the decision denying his claim for benefits. I reluctantly disagree and join the decision to affirm the Commission despite my conviction that denial of compensation in this instance contravenes the historical purposes for which workers’ compensation legislation was created.
Jobe’s testimony that his work was not rapid provided the substantial basis for denying his claim. However, Jobe’s claim shows, with painful clarity, the draconian effect that the changes to our Workers’ Compensation Law has on injured workers. Jobe presented clear, credible, and uncontroverted proof that his injury resulted from the gradual effect of heavy lifting on his job at Wal-Mart. Dr. Rogers’ opinion is undisputed that the weakened abdominal wall from the appendectomy coincided with the heavy lifting at Wal-Mart to produce the incisional hernia that has prevented Jobe from returning to work since September 6, 1994.
Yet the present definition of a “compensable injury” leaves Jobe uncompensated. He knows that his injury occurred at Wal-Mart. Wal-Mart knows that his injury occurred because of his work there. But because Jobe’s heavy lifting was not rapid, he cannot receive compensation for his injury and the thirteen surgeries that he has sustained.
Whatever the rationale might have been for adding the rapid repetitive motion requirement to the definition of compensable injury, the requirement plainly discriminates against workers like Jobe who work on difficult, heavy, and repetitive jobs that are not rapid but that result in serious injury nonetheless. Jobe’s gradual-onset injury would have plainly been compensable under prior law based upon this record because it arose out of and in the course of his employment, with no determination as to whether it was rapid or slow, repetitive or static.
Although the more restrictive definition of a compensable injury enacted by Act 796 was intended to reduce the number of gradual-onset claims that workers might assert against their employers under the workers’ compensation law, its long-term effect may be to expose employers to more expensive liability in tort than they faced under prior workers’ compensation law. For example, now that Jobe’s claim has been held noncompensable, Wal-Mart cannot assert the exclusive-remedy provision of the Workers Compensation Law as a bar to a civil action in tort. Jobe might assert a tort claim against Wal-Mart based on its statutory duty to provide a safe workplace prescribed by Ark. Code Ann. § 11-2-117(a), which reads:
Every employer shall furnish employment which is safe for the employees therein and shall furnish and use safety devices and safeguards. He shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of the employees.
If employees such as Jobe file and pursue tort actions against their employers for gradual-onset injuries that do not involve rapid repetitive motion, it is likely that the potential exposure facing those employers for defending those claims might be greater than the cost of providing compensation benefits when one adds the potential recoveries for pain and suffering possible injury verdicts.
Workers’ compensation was designed to make this litigious and expensive process unnecessary for workers and employers, while ensuring that injured and disabled workers such as Jobe would not be doomed to poverty while awaiting the outcome of the tort process. It is regrettable that the scheme of social legislation that was supposed to provide prompt treatment and compensation to injured workers has developed into a process whereby hard-working people are left injured, uncompensated, and plagued by medical expenses simply because they work at tasks that are too slow to be rapid and too infrequent to be deemed repetitive. Although I am obligated by the rule of law and our judicial role to affirm the result in this case, neither the rule of law nor my duty to interpret the revised workers’ compensation statute can blind and muzzle me concerning the harsh result our decision means for this diligent injured worker.