Humphrey v. Faulkner Nursing Center

Sam Bird, Judge. This is an appeal from a decision of the Workers’ Compensation Commission. Terry Humphrey, the appellant, was employed by Faulkner Nursing Center, appellee/ cross-appellant, on December 18, 1992, when she attempted to lift a patient back into a wheelchair. The patient was sliding to the floor, and the restraint on the wheelchair was choking her. As appellant attempted to lift the patient, she and a coworker, who was also lifting the patient, heard a loud pop in appellant’s right shoulder. Appellant states that her hand became numb and her arm and hand began turning blue and became cold. As a result of this injury, the appellant had a diskectomy and spinal fusion with bone graft at the C5-6 level of her spine. Her surgeon, Dr. Richard Peek, assigned her a thirty-five percent permanent physical impairment to the body as a whole. However, Dr. Earl Peeples also examined the appellant and gave her a permanent anatomical impairment of ten percent to the body as a whole based upon her neck injury and the fusion procedure. The administrative law judge found that the appellant had proven by a preponderance of the evidence that she is permanently and totally disabled as a result of impairments to her right arm, right shoulder, and neck. However, after a de novo review of the record, the full Commission found that the appellant was not permanently and totally disabled but that the appellant was entitled to a thirty-five percent permanent physical impairment to the body as a whole based upon the combination of impairments to her neck, right shoulder, and right arm. On April 8, 1997, the Commission entered an order and remanded this case to the law judge to receive additional evidence in order to determine what portion of the appellant’s thirty-five percent impairment rating is attributable to the scheduled arm impairment. In addition, the Commission directed the law judge to determine the degree of impairment to the appellant’s earning capacity related to her neck and shoulder impairments without regard to the scheduled arm impairment. On April 21, 1997, the appellant filed a notice of appeal contending that the Commission erred in finding that she was not permanently and totally disabled and that her arm impairment was a scheduled injury. On May 2, 1997, the appellee filed a cross-appeal arguing that the Commission’s finding that the appellant has a thirty-five percent physical impairment is not supported by substantial evidence. However, this court cannot reach the merits of this case and must dismiss the appeal for lack of a final order. 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. Rogers v. Wood Mfg., 46 Ark. App. 43, 877 S.W.2d 43 (1994); Adams v. Southern Steel & Wire, 44 Ark. App. 108, 866 S.W.2d 432 (1993); TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992); American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991); St. Paul Ins. Co. v. DeSota, 30 Ark. App. 45, 782 S.W.2d 374 (1990). 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. Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989). 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. Baldor Electric Co. v. Jones, supra; Adams v. Southern Steel & Wire, supra. This court is obliged to raise on its own motion the finality of an order because it goes to our own jurisdiction. Rogers v. Wood Mjg., supra. See also TEC v. Falkner, supra; Baldor Electric Co. v. Jones, supra. This appeal is dismissed because the order from which the parties appeal and cross-appeal is not a final order. Robbins, C.J., Jennings, Crabtree, and Meads, JJ., agree. Griffen, J., dissents.