Atlas Carriers and Insurisk Management Services v. Allen W. Sexton

Annotate this Case
ca04-081

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ATLAS CARRIERS, INSURISK MANAGEMENT SERVICES

APPELLANTS

V.

ALLEN W. SEXTON

APPELLEE

CA 04-81

OCTOBER 6, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 510879]

DISMISSED

Terry Crabtree, Judge

In this workers' compensation case the appellee, Allen Sexton, suffered a compensable injury on July 14, 1995, while employed by the appellant, Atlas Carriers, Inc. This appeal stems from the Commission's finding that the statute of limitations contained in Ark. Code Ann. ยง 11-9-702(b) (Repl. 2002) did not bar appellee's claim for additional compensation benefits. The Commission reversed the decision of an administrative law judge who held that the claim was barred by the statute of limitations. The Commission remanded the case for the law judge "to adjudicate the claimant's entitlement to vocational rehabilitation." On appeal, appellant contends that the Commission's decision is not supported by substantial evidence. We do not reach the merits of appellant's argument as the Commission's decision is not a final, appealable order. Accordingly, we dismiss.

Arkansas Code Annotated section 11-9-711(b)(2) (Repl. 2002) provides that appeals from the Commission to this court shall be allowed as in other civil actions. For an order to

be appealable, it must be final. TEC v. Falkner, 38 Ark. App. 13, 827 S.W. 2nd 661 (1992). To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Banquet Foods v. McGlothin, 26 Ark. App. 130, 760 S.W.2d 880 (1988). Interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality, and ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. Hernandez v. Simmons Industries and Allen Canning Co., 25 Ark. App. 25, 752 S.W.2d 45 (1988).

To be final, the decree must also put the court's directive into execution, ending the litigation or a separable branch of it. Mid-State Const. v. Sealy, 26 Ark. App. 186, 761 S.W.2d 951 (1988). That rule applied to the case at bar means that the order of the Commission is not a final, appealable order since it only holds that appellee's claim for additional benefits is not barred by limitations and remands the claim to a law judge for a determination as to merit. See Arkansas Highway & Transp. Dep't v. Gideon, 28 Ark. App. 84, 770 S.W.2d 677 (1989). No Commission decision has been put into execution; neither the litigation nor a separable branch of it has been ended. See id. While the issue of a final, appealable order has not been raised by either party in this case, the issue pertains to our appellate jurisdiction and is a matter that we raise on our own. Id; Samuels Hide & Metal Co., supra.

We recognize, however, that a decision from the Commission that the claim was barred by the statute of limitations would have been final because all of the parties' rights in the litigation would have been completely resolved. Banquet Foods, supra. Here, all of the parties' rights have not been resolved, there has been no award or denial of benefits, and the Commission's order is not final. Should the Commission award benefits, and if the employer chooses to appeal, the limitations issue can be raised then. Id. Based upon appellant's failure to appeal from a final order, we dismiss.

Bird and Roaf, JJ., agree.