Terry Humphrey v. Faulkner Nursing Center

Terry HUMPHREY v. FAULKNER NURSING CENTER

CA 97-791                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions II and III
                 Opinion delivered March 4, 1998


1.   Workers' compensation -- review of Commission's decision --
     order appealed from must be final. -- For the appellate court
     to review a decision of the Workers' Compensation Commission,
     the order from which the parties appeal must be final; for an
     order to be final, the order must dismiss the parties from the
     court, discharge them from the action or conclude their rights
     as to the cause of action; an order that is remanded to the
     law judge for the taking of additional evidence and one that
     does not award compensation for monetary benefits is not a
     final order; the appellate court is obliged to raise on its
     own motion the finality of an order because it goes to the
     court's jurisdiction.

2.   Workers' compensation -- order appealed from not final --
     appeal dismissed. -- Where the Workers' Compensation
     Commission had entered an order and remanded the case to the
     law judge to receive additional evidence, the court of appeals
     dismissed the appeal because the order from which the parties
     appealed and cross-appealed was not a final order.

     Appeal from the Arkansas Workers' Compensation Commission;
dismissed.
     Dodds, Kidd, Ryan & Moore, by:  Donald S. Ryan, for appellant.
     Friday, Eldredge & Clark, by:  Betty J. Demory, for appellee.

     Sam Bird, Judge.
     This is an appeal from a decision of the Workersþ Compensation
Commission.  Terry Humphrey, the appellant, was employed by
Faulkner Nursing Center, appellee/cross-appellant, on December 18,
1992, when she attempted to lift a patient back into a wheelchair. 
The patient was sliding to the floor, and the restraint on the
wheelchair was choking her.  As appellant attempted to lift the
patient, she and a coworker, who was also lifting the patient,
heard a loud pop in appellant's right shoulder.  Appellant states
that her hand became numb and her arm and hand began turning blue
and became cold. 
     As a result of this injury, the appellant had a diskectomy and
spinal fusion with bone graft at the C5-6 level of her spine.  Her
surgeon, Dr. Richard Peek, assigned her a thirty-five percent
permanent physical impairment to the body as a whole.  However, Dr.
Earl Peeples also examined the appellant and gave her a permanent
anatomical impairment of ten percent to the body as a whole based
upon her neck injury and the fusion procedure.  
     The administrative law judge found that the appellant had
proven by a preponderance of the evidence that she is permanently
and totally disabled as a result of impairments to her right arm,
right shoulder, and neck.  However, after a de novo review of the
record, the full Commission found that the appellant was not
permanently and totally disabled but that the appellant was
entitled to a thirty-five percent permanent physical impairment to
the body as a whole based upon the combination of impairments to
her neck, right shoulder, and right arm.  On April 8, 1997, the
Commission entered an order and remanded this case to the law judge
to receive additional evidence in order to determine what portion
of the appellantþs thirty-five percent impairment rating is
attributable to the scheduled arm impairment.  In addition, the
Commission directed the law judge to determine the degree of
impairment to the appellantþs earning capacity related to her neck
and shoulder impairments without regard to the scheduled arm
impairment.  
     On April 21, 1997, the appellant filed a notice of appeal
contending that the Commission erred in finding that she was not
permanently and totally disabled and that her arm impairment was a
scheduled injury.  On May 2, 1997, the appellee filed a cross-
appeal arguing that the Commissionþs finding that the appellant has
a thirty-five percent physical impairment is not supported by
substantial evidence.  However, this court cannot reach the merits
of this case and must dismiss the appeal for lack of a final order.
     It is a well-established rule that in order for this court to
review a decision of the Workersþ Compensation Commission, the
order from which the parties appeal must be final.  Rogers v. Wood
Mfg., 46 Ark. App. 43, 877 S.W.2d 43 (1994); Adams v. Southern
Steel & Wire, 44 Ark. App. 108, 866 S.W.2d 432 (1993); TEC v.
Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992); American Mut. Ins.
Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991);
St. Paul Ins. Co. v. DeSota, 30 Ark. App. 45, 782 S.W.2d 374
(1990).  For an order to be final, the order must dismiss the
parties from the court, discharge them from the action or conclude
their rights as to the cause of action.  Baldor Electric Co. v.
Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989).  Further, an order
that is remanded to the law judge for the taking of additional
evidence and one that does not award compensation for monetary
benefits is not a final order.  Baldor Electric Co. v. Jones,
supra; Adams v. Southern Steel & Wire, supra.  This court is
obliged to raise on its own motion the finality of an order because
it goes to our own jurisdiction.  Rogers v. Wood Mfg., supra.  See
also TEC v. Falkner, supra; Baldor Electric Co. v. Jones, supra. 
     This appeal is dismissed because the order from which the
parties appeal and cross-appeal is not a final order.
     Robbins, C.J., Jennings, Crabtree, and Meads, JJ., agree.
     Griffen, J., dissents.

     Wendell L. Griffen, Judge, dissenting.  I do not agree with the
decision to dismiss this appeal because no part of the Commissionþs
decision that was remanded to the administrative law judge is
involved in appellantþs appeal.  The first issue that appellant has
raised is that the Commissionþs decision that she was not
permanently and totally disabled is not supported by substantial
evidence.  Nothing concerning permanent total disability was
remanded to the administrative law judge for adjudication.  No
additional evidence will be taken regarding permanent total
disability.  No part of the issues that have been remanded (i.e.,
whether appellantþs right arm impairment contributed to the 35%
anatomical impairment rating to the body as a whole assessed by Dr.
Richard Peek, and the extent of wage-loss disability, if any,
attributable to that impairment to the body as a whole) are
encompassed in appellantþs challenge to the Commissionþs decision
to deny her claim for permanent total disability benefits.  In
fact, if the Commission erred by denying the permanent total
disability claim based on the odd-lot doctrine, then there is
nothing to remand.
     However, the majority holds that the appeal must be dismissed
because the Commissionþs decision lacked finality to the extent
that matters were remanded to the administrative law judge.  In
doing so, the majority relies upon the general rule that orders of
remand are not final, appealable orders.  See Lloyd v. Potlatch
Corp., 19 Ark. App. 335, 721 S.W.2d 670 (1986).  In our per curiam
decision in Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989), we reviewed the way that the law has developed
concerning the appealability of workersþ compensation cases, and we
noted the general principle that for an order to be appealable, it
must be a final order, meaning one which dismisses the parties from
the court, discharges them from the action, or concludes their
rights as to the subject matter in controversy.  Epperson v. Biggs,
17 Ark. App. 212, 705 S.W.2d 901 (1986).  We also observed that the
general rule applies to workersþ compensation appeals.  See H.E.
McConnell & Sons v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970),
and Cooper Indus. Prod. v. Meadows, 269 Ark. 966, 601 S.W.2d 275
(Ark. App. 1980).
     However, in Gina Marie Farms our court also recognized and
expressly embraced what it termed a þless restrictive ruleþ drawn
from Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978), as þa
better definition of a final, appealable order in a workersþ
compensation caseþ than the one set out in McConnell, or at least
an extension of the McConnell rule.  The Festinger definition of a
final, appealable order was taken from the decision in Davie v.
Davie, 52 Ark. 224, 12 S.W. 558 (1889), and provides that to be
final a decision þmust also put the courtþs directive into
execution, ending the litigation or a separable part of it.þ
Festinger, 264 Ark. at 277, 571 S.W.2d  at 84 (emphasis added).  Our
per curiam opinion in Gina Marie Farms reviewed cases decided by
our court from its origin in 1979, indicated that the Festinger
definition would be applied to resolve future questions about
whether an appeal is taken from a final, appealable order, and
concluded that we will dismiss appeals on our own motion where we
realize that the decision challenged is not a final, appealable
order.
     We have not abandoned or narrowed the Festinger definition, at
least openly, in the ensuing years.  However, we are certainly
refusing to follow it by dismissing this appeal.  Aside from the
fact that the permanent total disability issue raised as
appellantþs first allegation of error does not involve a matter
that has been remanded by the Commission to its administrative law
judge, that issue plainly and squarely meets the Festinger standard
of being a separable branch of the litigation that has been ended
by the decision appealed.  The majority does not suggest and cannot
demonstrate that appellant will be able to prove anything
concerning permanent total disability when the administrative law
judge considers the issues that have been remanded by the
Commission.  
     Our reasonable aversion to piecemeal appeals should not cloud
our understanding about the discrete differences between permanent
total disability, permanent partial disability to the body as a
whole, and permanent partial disability based upon scheduled
injuries.  The Commission has simply remanded to its administrative
law judge for additional evidence that part of appellantþs claim
related to its determination that she is not permanently totally
disabled.  Indeed, if appellant eventually prosecutes an appeal
following adjudication of the remanded issues and successfully
argues that the Commissionþs decision denying her claim for
permanent total disability is not supported by substantial
evidence, there is no plausible reason to believe that the record
on that appeal will include anything arising from the proceedings
on remand.  If appellant is permanently and totally disabled, her
scheduled injury and the injury to the body as a whole are merged
into the permanent and total disability so that there is no reason
to treat them separately on remand.  It is a long-settled principle
of law in Arkansas that a scheduled injury such as that appellant
has apparently suffered to her right arm cannot be apportioned to
the body as a whole absent a finding of permanent and total
disability.  See Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).  It is equally settled law that no wage-loss
disability benefits are paid for scheduled injuries absent a
finding of permanent and total disability.  Id.  Given that we have
a quarter-century of case law to this effect and that Arkansas
appellate courts have expressly embraced the view that a decision
that ends a separable part of a workersþ compensation case is a
final order for appealability purposes, one must wonder what part
of the Commissionþs decision denying appellantþs claim for
permanent total disability benefits she will be able to present
evidence about on remand, particularly when nothing concerning
permanent total disability has been remanded.
     As Justice Conley Byrd of the Arkansas Supreme Court wrote in
Luker v. Reynolds Metals Co., 244 Ark. 1088, 428 S.W.2d 45 (1968),
the appealability of the Commissionþs order in a workersþ
compensation claim þis not limited to the final disposition of the
matter before the Commission.þ  Id. at 1090.  The beneficial and
benevolent purposes intended by the workersþ compensation laws,
enacted to make reasonably necessary medical benefits and living
income quickly available to injured workers, would be completely
nullified if contested claims regarding entitlement to indemnity
and medical benefits were forced to await complete resolution of
every dispute and dismissal of every litigant as is true for other
types of litigation.  This is one reason why the Arkansas General
Assembly enacted Ark. Code Ann.  11-9-711(b)(2)(Repl. 1996), which
states that appeals from the Workersþ Compensation Commission
þshall take precedence over all other civil cases appealed to the
court.þ 
     It is regrettable that the sense of urgency recognized by the
General Assembly and experienced with pressing force by injured
workers is not matched by judicial resolve, especially after we
have explicitly created a special exception to the general rule of
appealability based on the Festinger principle that we embraced in
Gina Marie Farms.  I respectfully dissent.