dissenting. I respectfully disagree that this case should be tried a second time. The trial court labored to instruct the jury in a manner consistent with Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), and was, I believe, reasonably successful. Some indication of that effort is demonstrated by the fact that the language of instruction 7 which the majority dislikes (“For example, such a reason might be that the employee did not have the physical ability to do his job.”) is included in instructions 3 and 4 requested by the appellant.
But I would affirm the trial court on a different ground. In Baysinger, a majority of this court fashioned from whole cloth a cause of action for retaliatory discharge of an employee for filing a workers’ compensation claim. That decision was crafted largely on Sterling Drug, Inc. v. Oxford, 294 Ark. 239,743 S.W.2d 380 (1988) and M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), neither of which had the slightest connection with the law of workers’ compensation. The opinion in Baysinger mentions the provision of the Arkansas Workers’ Compensation Act imposing penalties on an employer who discriminates against an employee who files a claim [Ark. Code Ann. § 11-9-107 (1987)], but made no serious analysis of the exclusive remedy doctrine. I need not repeat the view expressed in dissent to the Baysinger decision (Special Justice Alan Epley and Hays, J., dissenting; Brown, J., dissenting on other grounds) except to emphasize that this court has said repeatedly that it has no power to create a cause of action not provided for in the Workers’ Compensation Act; that its remedies are exclusive. Seawright v. U.S.F. & G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982); Barth v. Liberty Mutual Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948)(a cause of action under the act is “purely statutory”); in Huffstettler v. Lion Oil Co., 110 F.Supp. 222 (W.D.Ark. 1953), Judge Miller wrote that only the legislature could create new causes of action under Amendment 26, creating the Workers’ Compensation Act; and in J.L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943), this court wrote unanimously that if the legislature had not provided for court review, then the courts could not have considered workers’ compensation cases at all.
The errancy of the Baysinger decision was confirmed by the General Assembly at its first session following Baysinger. Act 796 of 1993 reaffirms the exclusive remedy doctrine and specifically annuls Baysinger and two other ill advised decisions of this court.1
In a comparable situation we applied Act 44 of 1989 [Ark. Code Ann. § 12-9-108(a) (1987)] retroactively, overruling Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989). See Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991). In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we said: “the courts have no power to perpetuate a rule of law which the legislature has repealed.” I submit that Baysinger is an aberration that never should have come about and appellant’s asserted cause of action for retaliatory discharge is non-existent.
Mapco, Inc. v. Paine, 306 Ark. 198, 812 S.W.2d 483 (1991); Thomas v. Valmac Industries, 306 Ark. 228, 812 S.W.2d 673 (1991).