Baxter County Regional Hospital et al. v. Arlene Dixon

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

BAXTER COUNTY REGIONAL HOSPITAL, and RISK MANAGEMENT RESOURCES

APPELLANTS

V.

ARLENE DIXON

APPELLEE

CA01-481

December 12, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

E112173

APPEAL DISMISSED

This is an appeal from a decision of the Workers' Compensation Commission. We cannot reach the merits of the appellant's arguments because the order appealed from is not a final order. Therefore, we dismiss the appeal.

Appellee, Arlene Dixon, sustained compensable lumbar injuries on February 5, 1991, and July 21, 1991. A treating physician, Dr. Robert Foster, wrote in January 1994 that appellee had reached maximum medical improvement. Appellant, Baxter County Regional Hospital, paid benefits, including a ten percent physical permanent impairment rating that had been assigned by Dr. Foster in March 1992. Appellant ceased paying benefits after August 8, 1994.

In January 1995, appellee began treatment with Dr. Thomas Briggs, a neurological surgeon, and filed a claim for additional benefits. A prehearing order was filed February 6, 1995, wherein appellee contended that she was entitled to an additional anatomical impairment in the amount of five percent as assigned by Dr. John Wilson in April 1992, and that she was permanently and totally disabled "stemming from physical and psychiatric causes." A hearing was held before anadministrative law judge on December 20, 1995. The ALJ found that appellee failed to prove that she was entitled to any permanent disability benefits in excess of the ten percent assigned by Dr. Foster or that she was permanently and totally disabled. In an opinion filed November 18, 1996, the full Commission affirmed the ALJ's decision. Appellee filed a notice of appeal to this court, but never perfected her appeal.

Appellee later sought treatment from Dr. Bert Park, a neurological surgeon, in April 1997. Dr. Park performed a "Lumbar semihemilaminectomy with disk removal at L4-5" on May 10, 1997. In August 1998, appellee presented to another surgeon, Dr. Anthony McBride, who diagnosed "Recurrent L4-L5 disk herniation" and "Status post previous laminectomy and diskectomy." He performed a "Left L4-L5 hemilaminotomy with diskectomy" and "Excision of perineural cicatrix around the left L5 nerve root."

Appellee filed a "request to modify the previous award" on October 27, 1997. After a hearing, the ALJ concluded that appellee's request for additional benefits was barred by the statute of limitations. The ALJ stated that Ark. Code Ann. § 11-9-702 provides that a claim for additional benefits must be filed within one year from the date of the last payment or two years from the date of the injury, whichever is greater; appellee's claim was not filed until October 27, 1997, more than two years from the 1991 injury and more than one year from the last payment of benefits in 1995. With respect to whether she was entitled to a modification of the previous award, the ALJ found that the six-month period for modification provided by Ark. Code Ann. §11-9-713 expired six months after the Commission's November 19, 1996 opinion. The ALJ further found that appellee's present condition was related to degenerative conditions rather than to her compensable injury, and denied and dismissed her claim.

On appeal, the full Commission reversed the decision of the ALJ and found that appellee'sclaim was not barred by the statute of limitations because a claim for additional compensation tolls the statute until the claim is decided. The Commission noted that the February1995 prehearing order, in which appellee claimed she was entitled to additional benefits, was a timely-filed claim for additional benefits and tolled the statute of limitations until the claim was decided. The Commission reasoned that after it affirmed the ALJ's denial of benefits in its November 18, 1996 opinion, the statute began to run again, and thereafter appellee filed a claim for additional benefits on October 27, 1997, which was within the one-year period permitted. The Commission also found that the appellee's continuing need for medical treatment was the natural and probable result of her compensable injuries, that she proved entitlement to additional reasonable and necessary medical treatment, and that appellant is liable for the surgeries performed by Drs. Park and McBride. Additionally, the Commission remanded the case to the administrative law judge, directing the ALJ to enter findings regarding whether she is entitled to a modification of her award pursuant to Ark. Code Ann. § 11-9-713(a)(2) and whether she is entitled to an additional 13% impairment rating assigned by Dr. McBride.

In Humphrey v. Faulkner Nursing Ctr., 61 Ark. App. 48, 964 S.W.2d 224 (1998), we stated that it is a well-established rule that in order for this 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. Id. 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. Id. This court is obliged to raise on its own motion the finality of an order because it goes to our own jurisdiction. Id.

In the present case, the Commission reversed the ALJ's decision that appellee's claim foradditional benefits was barred by the statute of limitations and found that appellant was liable for the surgeries performed by Drs. Park and McBride. However, the Commission also remanded the case to the ALJ to enter further findings with respect to whether appellee was entitled to a modification of her award and whether she was entitled to an additional impairment rating. Because the healing period has ended in this case, all of the issues in the present case can be determined at one time. Addressing only one of the issues on appeal would encourage piecemeal litigation. We conclude that due to the Commission's remand of the undecided issues of whether appellee is entitled to a modification of the award and to additional permanent disability benefits, the order appealed from is not a final appealable order. Thus, we dismiss the appeal without prejudice.

Appeal dismissed.

Pittman and Jennings, JJ., agree.