Rose Lee v. Tyson Foods, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ROSE LEE

APPELLANT

V.

TYSON FOODS, INC.

APPELLEE

CA 04-249

January 19, 2005

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [E910706]

DISMISSED

David M. Glover, Judge

Appellant, Rose Lee, brings this appeal directly from a decision of the Workers' Compensation Commission. We dismiss the appeal for lack of jurisdiction.

Appellant injured her hand while working at Tyson Mexican Original, Inc., which is a wholly owned subsidiary of appellee Tyson Foods, Inc. The injury was treated as compensable under the Workers' Compensation Act, and she recovered benefits, including a lump-sum payment. This particular case, however, originated in the Circuit Court of Washington County. Appellant filed her complaint against Tyson Foods, Inc., alleging that it was liable for the injuries to her hand under theories of strict liability, breach of warranties, and negligence. She based her claim for damages upon her allegation that Tyson Foods, Inc. manufactured, supplied, assembled, and installed defective cooling conveyors, including the one on which she was injured.

Tyson Foods, Inc. filed a motion to dismiss based upon its contention that it was entitled to the exclusive-remedy protection of Arkansas Code Annotated section 11-9-105(a)(Repl. 1996). The circuit court temporarily denied the motion, concluding that "the applicability of workers' compensation laws, including but not necessarily limited to the issue of whether the Plaintiff is an employee of Tyson Foods, Inc., thereby affording said Defendant the exclusive remedy protection of Arkansas Code Annotated section 11-9-105, is an issue that must be determined by the Arkansas Workers' Compensation Commission." The circuit court then ordered the transfer of those issues to the Commission for a decision, but retained jurisdiction of the case pending the outcome. See VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998) (holding that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the Commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort).

The Commission affirmed and adopted the ALJ's finding that Tyson Foods, Inc. was entitled to the exclusive-remedy protection of Arkansas Code Annotated section 11-9-105(a) because it was the sole stockholder of appellee Tyson Mexican Original, Inc. Appellant brings this appeal directly from the Commission decision.

The question of whether a judgment, decree, or order is final is a jurisdictional issue that this court has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003); Ark. R. App. P. - Civ. 2. Where no final or otherwise appealable order is entered, this court lacks jurisdiction to hear the appeal. Ford Motor Co., supra. Our examination of Rule 2(a) of the Arkansas Rules of Appellate Procedure - Civil reveals no basis for assuming jurisdiction of this appeal.

Moreover, we have concluded that it does not fall within the narrow exception outlined in Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). In Arkansas Insurance Department v. Baker, ____ Ark. ____, ____ S.W.3d ____ (June 24, 2004), our supreme court explained that under the exception recognized in Gipson, supra, an interlocutory order may be reviewed by an appellate court when it effectively disposes of the litigation and leaves the appellants in a position without an appropriate remedy by means of appeal. In Gipson, the plaintiffs sought discovery to require the disclosure of financial records during litigation that sought to obtain inspection of those financial records. The trial court's interlocutory order requiring the release of the information through discovery was held to effectively dispose of the litigation because the ultimate goal of the lawsuit was to require the party to produce the financial documents, and when the trial court ordered discovery of those documents the ultimate issue of the lawsuit was determined and there was no other avenue for appellate review.

Here, this case originated in circuit court as a personal-injury action, and the circuit court specifically retained jurisdiction of the case when it transferred the designated issues to the Commission. Yet, this appeal was brought directly from the Commission decision without first returning the case to the circuit court. While we recognize that the Commission's decision may well effectively bar prosecution of this case in circuit court, there will nevertheless be an avenue for appellate review from the circuit court. Consequently, we find that under the circumstances of this case, the Commission's decision is not a final appealable order pursuant to Rule 2 of the Arkansas Rules of Appellate Procedure - Civil, and that it does not fall within the narrow exception outlined in Gipson, supra. Therefore, we hold that this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Pittman, C.J., and Baker, J., agree.