Rogers v. Wood Manufacturing

John E. Jennings, Chief Judge. James Roy Rogers sustained an admittedly compensable injury on October 1, 1987, while attempting to move a boat. He had sustained a previous back injury while working for another employer in 1981, which resulted in a laminectomy. An administrative law judge held a hearing in August 1991. The primary issue at that hearing centered on a dispute between the employer’s insurance carrier and the Second Injury Fund as to which incident was the cause of the claimant’s current condition. In an opinion dated October 14, 1991, the law judge made the following specific findings: 4. Claimant’s present lumbar dysfunction is attributable to the aggravation or new injury sustained on or about October 1, 1987. 5. Claimant is entitled to an award of benefits for medical care provided and to be provided by Dr. Schoedinger for his back condition. In an opinion dated March 6, 1992, the Commission affirmed and adopted the opinion of the ALJ. On June 11, 1992, the law judge entered an “Interim Order and Opinion.” That order stated: I have Mr. Bassett’s June 9, 1992 letter with which he enclosed a copy of Mr. Spencer’s June 5, 1992 letter and Mr. Bassett’s June 9, 1992 letter to Dr. Schoedinger. I have reviewed my October 14, 1991 order and opinion as well as my May 1, 1991 letter, the April 22, 1991 order setting this case for a hearing, and the August 31, 1990 letter referred to in Mr. Bassett’s June 9 correspondence.. It appears that for reasons I do not now recall I did, in Finding 5, award benefits for past and future medical care by Dr. Schoedinger. This was a mistake on my part for, as indicated by Mr. Bassett in his June 9 letter, I indicated at pages 17-18 of the transcript an intent to defer making decisions on mileage and pre-authorization treatment by Dr. Schoedinger. Apparently, my oversight was not pointed out to the Commission on appeal, and the Commission failed to discover it on its own. Therefore, while I’m puzzled about why I awarded medical benefits for past, as well as future, medical care by Dr. Schoedinger — I can only assume that this was an oversight —the October 14, 1991 order does appear to do this. Of course, I cannot speak for the Commission, which might place a different interpretation on Finding No. 5, as affirmed in its March 6,1991 order, and find that it did not intend to rule on an issue not drawn in issue at the hearing. IT IS SO ORDERED. This order was appealed by both the claimant and the employer’s insurance carrier. After noting that the record in the case indicated that the administrative law judge had expressly deferred consideration of the question of whether some of Dr. Schoedinger’s treatment was unauthorized, the full Commission stated: In summary, we find that the respondents’ request for clarification of our March 6, 1992, decision should be granted in light of the dispute that has arisen. In that decision, we found that the claimant was entitled to an award of benefits for authorized medical care provided and to be provided by Dr. Schoedinger for his back condition. We did not find that the claimant was entitled to an award of benefits for all medical care provided by Dr. Schoedinger in the past. Any consideration of the claimant’s entitlement to medical care provided by Dr. Schoedinger which the respondents contend was unauthorized was expressly deferred at the first hearing, and that issue remains unresolved. Consequently, we remand this claim to the Administrative Law Judge so that any unresolved matters may be settled. On appeal to this court, appellant raises one point for reversal: “The Commission erred and was without jurisdiction when it modified a clear and unambiguous finding which had become final and res judicata after the issue was previously affirmed by the full Commission and was not appealed to this court.” We conclude that the Commission’s order is not final and appealable. In American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991), we said: As a general mle, orders of remand are not final and appeal-able; ordinarily, an order is reviewable only at the point where it awards or denies compensation. For an order to be appealable, it must be a final one. To be final, the order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter of the controversy. It also has been stated that appealable orders of the Commission are not limited to those that make a final disposition of an entire case. However, we have held that the test for determining whether an order of the Workers’ Compensation Commission is appealable is whether it puts the Commission’s directive into execution, ending the litigation or a separable part of it. An order that establishes a party’s right to recover but remands for a determination of the amount of that recovery ordinarily is not an appealable one. [Citations omitted.] The issue is one that we are obliged to raise on our motion because it goes to our own jurisdiction. See Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991). In the case at bar the order appealed from is an order of remand which neither awards nor denies compensation. We conclude that it is a decision on an incidental matter that is not reviewable because of its lack of finality. See Stafford v. Diamond Constr. Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990). Appeal dismissed. Mayfield and Cooper, JJ., dissent.