{ "id": 1914595, "name": "LIBERTY MUTUAL INSURANCE COMPANY v. Willie COLEMAN and the Honorable Harvey L. Yates, Circuit Judge", "name_abbreviation": "Liberty Mutual Insurance v. Coleman", "decision_date": "1993-05-17", "docket_number": "92-947", "first_page": "212", "last_page": "218", "citations": [ { "type": "official", "cite": "313 Ark. 212" }, { "type": "parallel", "cite": "852 S.W.2d 816" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "644 S.W.2d 316", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6136872 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/7/0061-01" ] }, { "cite": "7 Ark. App. 65", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136996 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/7/0065-01" ] }, { "cite": "232 Ark. 216", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694033 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/ark/232/0216-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-525", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "259 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619297 ], "weight": 5, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0724-01" ] }, { "cite": "290 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873758 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0240-01" ] }, { "cite": "292 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871369 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0013-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-802", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 1 }, { "cite": "283 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879997 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/283/0191-01" ] }, { "cite": "292 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871344 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/292/0019-01" ] }, { "cite": "306 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900923 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/ark/306/0228-01" ] }, { "cite": "294 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895820 ], "weight": 2, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/294/0050-01" ] }, { "cite": "290 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873758 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/290/0240-01" ] }, { "cite": "292 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871369 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/292/0013-01" ] } ], "analysis": { "cardinality": 618, "char_count": 12009, "ocr_confidence": 0.907, "pagerank": { "raw": 7.400743421369444e-08, "percentile": 0.4426875852607623 }, "sha256": "85300ebd69611e21167417d3a1575167b8adf582bf17099accaf0eba2273551d", "simhash": "1:006b81a4ccba41be", "word_count": 1905 }, "last_updated": "2023-07-14T19:14:05.799320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., Newbern and Brown, JJ., dissent.", "Newbern and Brown, JJ., join in this dissent." ], "parties": [ "LIBERTY MUTUAL INSURANCE COMPANY v. Willie COLEMAN and the Honorable Harvey L. Yates, Circuit Judge" ], "opinions": [ { "text": "Tom Glaze, Justice.\nLiberty Mutual Insurance Company seeks a writ of prohibition against the St. Francis County Circuit Court and for its grounds, asserts that court has erroneously assumed subject matter jurisdiction of a tort-of-outrage case filed by Willie Coleman. Liberty Mutual contends Mr. Coleman\u2019s exclusive remedy is under the Workers\u2019 Compensation Act. See Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987).\nIn the present case, Mr. Coleman, a workers\u2019 compensation claimant, sustained an injury to his right hand and arm on September 1,1989. The workers\u2019 compensation insurer, Liberty Mutual, partially acknowledged coverage for Coleman\u2019s injury and paid him some benefits. Coleman was afforded medical care from Dr. L\u2019Heureux, an orthopedic surgeon. The doctor determined Coleman could not regain satisfactory improvement to his hand and arm unless he received extensive therapy from a pain clinic in Memphis, and the doctor made his recommendation known to Liberty Mutual by telephone and letter dated October 17,198 9. A new representative of Liberty Mutual initially denied the doctor\u2019s recommendation, and stated it would rather pay Coleman the disability relating to his arm than to pay the expenses of the pain clinic. Liberty Mutual subsequently authorized treatment at the pain clinic blaming the initial refusal on one of its representatives as being unfamiliar with Coleman\u2019s file. It further asserted Coleman failed to take advantage of Liberty Mutual\u2019s offer.\nOn April 11, 1990, Coleman\u2019s right arm was amputated below the elbow; Coleman then filed an A7 claim form with the Workers\u2019 Compensation Commission, and also filed this suit for the tort of bad faith and outrageous conduct, alleging Liberty Mutual\u2019s wilful, intentional and unjustified refusal to authorize treatment and pay Coleman\u2019s medical expenses for therapy at the pain clinic caused the loss of his arm. Liberty Mutual answered, denying that it refused necessary medical treatment to Coleman or that its initial refusal caused Coleman to lose his arm. Liberty Mutual further moved to dismiss Coleman\u2019s tort action, stating his exclusive remedy was under the Workers\u2019 Compensation Act.\nThe trial court denied Liberty Mutual\u2019s motion, and in this writ of prohibition action filed by Liberty Mutual, the issue is whether Coleman can sue the workers\u2019 compensation insurer for an intentional tort when that insurer declines to pay certain medical expenses. The answer is no. The single issue presented here has been previously decided by this court at least twice. Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986); Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976).\nIn Cain, the claimant, like Coleman here, was refused payment of certain medical expenses by the workers\u2019 compensation insurance carrier. The claimant subsequently filed suit for intentional tort against the carrier, alleging the insurer had stipulated it would pay all medical expenses and its failure to do so caused the claimant to suffer emotional distress, humiliation, and embarrassment. The trial court dismissed the claimant\u2019s suit, and this court affirmed, stating as follows:\nWe have previously ruled on this issue. In Johnson v. Houston General Insurance Co., 259 Ark. 724, 536 S.W.2d 121 (1976), we held that the benefits payable pursuant to the workers\u2019 compensation act, and the procedure set out in that act for obtaining those benefits, constitute an exclusive remedy, and that remedy precludes an action at law, even for an intentional tort arising out of the non-payment of benefits.\n[Ms. Cain], the plaintiff claimant below, asks us to overrule Johnson, supra. We decline to do so because the holding conforms with the workers\u2019 compensation act which provides the remedies for late payment. The statutory remedies include: (1) A twenty percent penalty plus interest for the late payment of an award, Ark. Stat. Ann. \u00a7 81-1319(f)(g) (Repl. 1976), (2) A provision by which the Commission may require a bond from an employer to insure payment, Ark. Stat. Ann. \u00a7 81-1319(j) (Repl. 1976), and (3) A provision that a final award may be filed with the circuit clerk which causes it to become a lien on the property of the employer, Ark. Stat. Ann. \u00a7 81-1325 (c) (Repl. 1976).\nAny change concerning the exclusivity of the statutory remedies or the form of those remedies must come legislatively.\nColeman briefly alludes to the Cain & Johnson decision and the dissenting opinion, in particular, offers succinct reasons why those decisions should not apply to the situation here. In short, the dissenting opinion says Coleman\u2019s claim does not involve nonpayment of benefits, but instead characterizes his loss as a second injury which resulted from Liberty Mutual\u2019s \u201crefusal to approve treatment.\u201d Obviously, Mr. Coleman\u2019s failure to obtain treatment at the pain clinic recommended by Dr. L\u2019Heureux was directly due to Coleman\u2019s claim that Liberty Mutual would not pay for such treatment. Thus, as was the case in Cain, the workers\u2019 compensation insurer here declined (initially at least) to pay certain medical expenses, and Coleman, the claimant, brought suit alleging bad faith on the insurer\u2019s part. The only difference here is that Coleman further alleged Liberty Mutual\u2019s refusal to pay medical expenses supported the wilful or intentional tort of outrage. Coleman, under the rule of law established in Cain and Johnson, simply is precluded from suing the insurer for such an intentional tort arising out of the nonpayment of medical expenses.\nAs previously mentioned, Liberty Mutual claims it authorized payment of Coleman\u2019s treatment at the pain clinic, and its initial refusal did not cause him to lose his arm. Coleman disagrees. Nevertheless, under settled law, Coleman\u2019s remedy was to petition the Commission and show that the pain clinic expenses were reasonable and should be paid by Liberty Mutual. Apparently, Coleman made no such request of the Commission. At least, such a request is not a part of the record before us. Clearly, Coleman is not entitled to dual remedies, one for intentional tort and another under the Workers\u2019 Compensation Act, as the dissenting opinion would allow.\nBecause the rule in Cain and Johnson applies here, Liberty Mutual\u2019s petition for writ of prohibition to the St. Francis County Circuit Court must be granted. Coleman\u2019s exclusive remedy lies in his pending workers\u2019 compensation case numbered WCC D914016.\nIn conclusion, the dissenting opinion\u2019s reference to a second injury suggests Coleman cannot be said to have elected his Workers\u2019 Compensation remedy because his tort, action emanates from his second injury (amputation) which occurred after his initial on-the-job injury and Workers\u2019 Compensation claim. Such a suggestion is in total conflict with established law. Successive injuries are dealt with under the Workers\u2019 Compensation law, Ark. Code Ann. \u00a7 11-9-525 (1987); in addition this court has held that when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an intervening cause attributable to the claimant\u2019s own negligence or misconduct. Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 316 (1982). The Workers\u2019 Compensation Commission has the initial jurisdiction to determine the compensability issue involving Coleman\u2019s successive or so-called second injury.\nBecause jurisdiction in this matter rests with the Workers\u2019 Compensation Commission, we grant Liberty Mutual\u2019s request for writ of prohibition.\nHolt, C.J., Newbern and Brown, JJ., dissent.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "Jack Holt, Jr., Justice,\ndissenting. I respectfully dissent.\nAdmittedly, workers\u2019 compensation carriers clearly share the same immunity from injured employees\u2019 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\u2019 Compensation Commission\u2019s 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\u2019s situation.\nHere, it is claimed that Liberty Mutual\u2019s 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\u2019 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).\nThe 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. \u00a7 11-9-802 (1987), we determined in Cain that the Workers\u2019 Compensation Act provided the exclusive remedy for intentional torts arising out of the nonpayment of benefits.\nSimilarly, in Johnson the appellant appealed a dismissal of a complaint against his workers\u2019 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\u2019 Compensation Commission.\nHowever, unlike the claims in Cain and Johnson, Mr. Coleman\u2019s claim does not involve nonpayment of benefits. It involves an allegation of outrageous conduct against a workers\u2019 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\u2019 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.\nFurther, the majority makes mention and gives weight to an A7 Workers\u2019 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\u2019s initial injury or for his alleged second injury.\nFor these reasons, Mr. Coleman\u2019s claim for an alleged second injury should be treated as a separate claim and Liberty Mutual\u2019s petition for writ of prohibition should not lie.\nIf this court denied the writ, we would not be making a determination as to whether Liberty Mutual\u2019s 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\u2019s claim of a second injury.\nAccordingly, I think the circuit court does have jurisdiction to proceed further in this matter and the petition for writ should be denied.\nNewbern and Brown, JJ., join in this dissent.", "type": "dissent", "author": "Jack Holt, Jr., Justice," } ], "attorneys": [ "Rieves & Mayton, by: William J. Stanley, for appellant.", "Daggett, Van Dover & Donovan, for appellee" ], "corrections": "", "head_matter": "LIBERTY MUTUAL INSURANCE COMPANY v. Willie COLEMAN and the Honorable Harvey L. Yates, Circuit Judge\n92-947\n852 S.W.2d 816\nSupreme Court of Arkansas\nOpinion delivered May 17, 1993\n[Rehearing denied June 21, 1993.]\nRieves & Mayton, by: William J. Stanley, for appellant.\nDaggett, Van Dover & Donovan, for appellee\nHolt, C.J., and Brown, J., would grant reheaing; Newbern, J., not participating." }, "file_name": "0212-01", "first_page_order": 242, "last_page_order": 248 }