dissenting. I respectfully dissent.
Admittedly, workers’ compensation carriers clearly share the same immunity from injured employees’ lawsuits as employers. See Burkett v. PPG Industries, Inc., 294 Ark. 50, 740 S.W.2d 621 (1987). As such, claims against carriers are generally within the Workers’ Compensation Commission’s sole jurisdiction. Yet, certain narrow exceptions to the general rules of exclusivity have been carved out by our courts as well as by other courts. Liability based upon a wilful and intentional act by the employer entitles an employee to bring a common law tort action. See Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991); Fore v. Circuit Court of Izard County, 292 Ark. 19, 727 S.W.2d 840 (1987). And, this narrow exception is applicable to Mr. Coleman’s situation.
Here, it is claimed that Liberty Mutual’s outrageous conduct caused Mr. Coleman not only emotional harm but a condition more egregious . . . actual physical deformity. Thus, Mr. Coleman should be permitted to proceed in a common law tort action and avoid the exclusive remedy under the Workers’ Compensation Law if he can show actual, specific and deliberate intent by Liberty Mutual to injure him. See Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).
The majority cites Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986), as authority to grant the petition for writ of prohibition asserting that this case involves nonpayment of benefits. However, our holdings in Cain and Johnson are simply not applicable. Relying on Ark. Code Ann. § 11-9-802 (1987), we determined in Cain that the Workers’ Compensation Act provided the exclusive remedy for intentional torts arising out of the nonpayment of benefits.
Similarly, in Johnson the appellant appealed a dismissal of a complaint against his workers’ compensation carrier. In affirming the dismissal, this court was faced with a situation in which an employee wanted to bring a common law action against the carrier because of its failure to pay benefits previously awarded by the Workers’ Compensation Commission.
However, unlike the claims in Cain and Johnson, Mr. Coleman’s claim does not involve nonpayment of benefits. It involves an allegation of outrageous conduct against a workers’ compensation carrier in refusing to approve treatment resulting in a second injury which necessitated arm amputation. There is a marked distinction between a refusal to pay a workers’ compensation claim and a refusal to approve recommended treatment. As such, a suit for recovery under the tort of outrageous conduct seeks neither compensation nor medical benefits for the original on-the-job injury.
Further, the majority makes mention and gives weight to an A7 Workers’ Compensation claim form purportedly filed by Mr. Coleman. Since the record does not reveal this form or its contents to us, we cannot say when or if the form was actually filed, or whether or not the purpose of its filing was for a claim for Mr. Coleman’s initial injury or for his alleged second injury.
For these reasons, Mr. Coleman’s claim for an alleged second injury should be treated as a separate claim and Liberty Mutual’s petition for writ of prohibition should not lie.
If this court denied the writ, we would not be making a determination as to whether Liberty Mutual’s conduct was sufficient to justify such a claim; we would simply be saying that a question of fact exists as to whether there is a causal connection between the alleged acts of Liberty Mutual in refusing to approve the recommended treatment and Mr. Coleman’s claim of a second injury.
Accordingly, I think the circuit court does have jurisdiction to proceed further in this matter and the petition for writ should be denied.
Newbern and Brown, JJ., join in this dissent.