Felix G. Ramirez v. LDS, LLC and Farmer's Insurance Group

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

FELIX G. RAMIREZ

APPELLANT

V.

LDS, LLC and FARMER'S INSURANCE GROUP

APPELLEES

CA04-00276

DECEMBER 1, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F001850]

DISMISSED

Karen R. Baker, Judge

Appellant, Felix Ramirez, appeals the Workers' Compensation Commission's denial of attorney's fees for successfully refuting the employer's motion seeking dismissal for failure to prosecute. We do not reach the merits of appellant's argument as the Commission's decision is not a final, appealable order. Accordingly, we dismiss.

Appellees filed a motion to dismiss for failure to prosecute on May 13, 2003. Appellant objected and requested a hearing. A hearing was scheduled for July 2, 2003. At the hearing, appellant presented documentary evidence, including a letter to appellant's treating physician dated April 29, 2003, requesting that the physician clarify whether there was anything else which could be done on appellant's behalf with regard to his compensable injury. As of the date of the hearing, appellant had not received a response from his physician. Based upon the evidence indicating that appellant was in the process of attempting to determine whether he was in need of additional medical treatment for his compensable injury, the administrative law judge found that appellant was not failing to prosecute his claim and denied appellees' motion to dismiss for failure to prosecute.

At the end of the hearing, appellant's attorney requested a reasonable attorney fee. Subsequent to the hearing, appellees also filed a motion for costs and attorney fees in connection with the case. In an order dated July 21, 2003, the administrative law judge found that neither party was entitled to a fee, as a fee was not authorized by statute.

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 denies appellee's claim for attorney fees for successfully avoiding dismissal of the claim that remains to be submitted 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. Because the order appealed from is not a final order, we dismiss.

Griffen and Crabtree, JJ., agree.