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Docket Number

CA 93-395

Attorney(S)

Frederick S. "Rick" Spencer, for appellant. Bassett Law Firm, by: Tod C. Bassett, for appellee.

Judges

JOHN E. JENNINGS, Chief Judge.
JAMES R. COOPER, Judge, dissenting.

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Smart Summary

Case Summary: James Roy Rogers v. Wood Manufacturing, CA 93-395 (Ark. Ct. App. En Banc, May 25, 1994)

Factual and Procedural Background

James Roy Rogers sustained an admittedly compensable back injury on October 1, 1987, while attempting to move a boat. He had previously suffered a back injury in 1981 while working for another employer that resulted in a laminectomy. An administrative law judge (ALJ) held a hearing in August 1991. In an opinion dated October 14, 1991, the ALJ made specific findings, including that the claimant's current lumbar dysfunction was attributable to the October 1, 1987 incident and that the claimant "is entitled to an award of benefits for medical care provided and to be provided by Dr. Schoedinger for his back condition." The Commission affirmed and adopted the ALJ's opinion on March 6, 1992.

On June 11, 1992, the ALJ issued an "Interim Order and Opinion" stating that Finding No. 5 (the award of medical benefits by Dr. Schoedinger) was likely a mistake or oversight because the ALJ had intended to defer decisions about mileage and pre-authorization treatment. The ALJ characterized the award in Finding No. 5 as an oversight and acknowledged he could not speak for the Commission. That interim order was appealed by both the claimant and the employer's insurer.

The full Commission then issued a decision granting respondents' request for clarification of its March 6, 1992 decision, stating that it had intended to award benefits only for authorized medical care by Dr. Schoedinger and had not found entitlement to all past medical care by that physician. The Commission remanded the claim to the ALJ so that unresolved matters regarding alleged unauthorized treatment could be settled.

The claimant appealed the Commission's remand/clarification to the Court of Appeals, arguing that the Commission erred and lacked jurisdiction in modifying a finding that had become final and res judicata after affirmation by the full Commission and not previously appealed to the court.

Legal Issues Presented

Whether the order appealed from (a Commission order remanding the case for resolution of unresolved matters regarding medical authorization) was a final, appealable order.
Whether the Commission erred and was without jurisdiction when it modified or clarified a previously affirmed ALJ finding that the appellant contends had become final and res judicata.

Arguments of the Parties

Appellant's Arguments

The appellant (claimant) contended that 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." (Quoted point for reversal presented on appeal.)

Appellee / Respondents' Arguments

The opinion does not contain a detailed account of the appellee's (respondents') legal arguments as presented to this court. The Commission's administrative-level materials and letters are described in the opinion, but the appellees' position before the Court of Appeals is not detailed in argument form in the text of this opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991)	General rule that orders of remand are not final and appealable; an order is reviewable only when it awards or denies compensation and is final in the sense of concluding parties' rights.	The court cited this case to support the conclusion that the Commission's remand order was not final or appealable because it did not award or deny compensation and thus did not conclude rights as to the subject matter.
Hampton Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991)	Principle that appellate courts are obliged to raise jurisdictional issues on their own motion.	The court invoked this precedent to explain that it must consider, sua sponte, whether it had jurisdiction to hear the appeal because finality goes to the court's jurisdiction.
Stafford v. Diamond Constr. Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990)	Remand orders that neither award nor deny compensation are decisions on incidental matters and are not reviewable for lack of finality.	The court relied on Stafford in concluding that the Commission's remand order was an incidental decision lacking finality and therefore not subject to appellate review.
State v. Hatton, 315 Ark. 583, 868 S.W.2d 492 (1994)	Example (as cited by dissent) where an appeal was dismissed because a party failed to file a timely notice of appeal; used by the dissent to suggest the appellant might have appealed earlier.	Referenced in Judge Mayfield's dissent to argue that the appellant could have or should have timely appealed the ALJ's October 14, 1991 order rather than seeking clarification months later.
Arkansas State Highway Commission v. Bollinger, 230 Ark. 877, 327 S.W.2d 381 (1959)	Cited by the dissent in support of the proposition that an appeal should have been taken earlier in the process.	Raised in the dissent as an authority to support the view that the appropriate procedural step was an earlier appeal rather than the post-affirmation clarification process that occurred here.
Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992)	Reinforces that courts do not issue advisory opinions; cited by the dissent to show that requests for clarification post-appeal are unusual.	Used in the dissent to argue it was highly unusual for an adjudicatory body to act on such a request and to support skepticism about the propriety of the clarification process in this case.
Lloyd v. Potlatch Corporation, 19 Ark. App. 335, 721 S.W.2d 670 (1986)	Under the Workers' Compensation Act, neither an ALJ nor the full Commission has power to reconsider a decision after the time to appeal has run, except in specific statutory situations.	Cited in the dissent to support the proposition that the Commission/ALJ lacked authority to reconsider the previously affirmed decision once the appeal period had passed (unless statutory exceptions applied).
McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994)	Cited by the dissent as demonstrating that some administrative agencies take a more relaxed view about reconsideration or clarification than the Workers' Compensation Commission.	Invoked in the dissent to suggest an alternative approach—affirming the Commission under a more relaxed administrative standard rather than dismissing the appeal—and to contrast other agency practices with the strict limitations applied to the Commission.

Court's Reasoning and Analysis

The court focused on whether the Commission's order was final and thus appealable. The panel proceeded as follows:

Jurisdictional Inquiry: The court noted that whether the order appealed from was final and appealable implicated the court's jurisdiction and therefore had to be raised by the appellate court on its own motion, citing Hampton Crain v. Black for the obligation to consider jurisdiction sua sponte.
Characterization of the Commission's Order: The court characterized the order under review as an order of remand that did not award or deny compensation but instead remanded unresolved matters to the ALJ for resolution.
Applicable Rule on Finality: The court relied on American Mutual Insurance Co. v. Argonaut Ins. Co. and related authority to explain the governing rule that remand orders ordinarily are not final or appealable because they do not terminate the litigation or conclude the parties' rights as to the subject matter; appealable orders generally award or deny compensation or otherwise put the Commission's directive into execution.
Conclusion on Reviewability: Applying those principles, the court concluded that the Commission's remand order was a decision on an incidental matter and lacked finality; therefore the Court of Appeals had no jurisdiction to review it. The court cited Stafford v. Diamond Construction Co. in support of the proposition that such remand orders are not reviewable because of their lack of finality.
Disposition: Because the order was not final and appealable, the court dismissed the appeal.

Holding and Implications

APPEAL DISMISSED.

Holding: The Court of Appeals held that the Commission's order — a remand for the resolution of unresolved matters concerning whether certain medical treatment was authorized — was not a final, appealable order because it neither awarded nor denied compensation and therefore did not conclude the parties' rights as to the subject matter. Because finality goes to the appellate court's jurisdiction, the court was required to raise the issue and dismissed the appeal for lack of jurisdiction.

Implications:

The direct effect of the decision is dismissal of the Court of Appeals' review; the Commission's remand/clarification remains not reviewable at this stage because it is not final.
The opinion applies existing Arkansas appellate precedent on finality of remand orders rather than creating a new rule. It reinforces the principle that remand orders that do not award or deny compensation are ordinarily not appealable.
Two judges dissented. Judge Cooper would have reached the merits and would have reversed. Judge Mayfield expressed concern that dismissal leaves the controversy pending and without guidance; in his view, alternatives (including affirming the Commission or concluding an earlier appeal should have been taken) were preferable to dismissal. The dissent therefore signals disagreement about the practical consequences of dismissal in this particular case.

This summary is drawn exclusively from the language and content of the provided opinion. No information beyond the opinion text has been added or inferred.

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James Roy ROGERS v. WOOD MANUFACTURING

1. APPEAL ERROR — FINAL, APPEALABLE ORDER — COURT OBLIGED TO RAISE ISSUE — ISSUE DETERMINATIVE OF JURISDICTION. — Whether the order appealed from was a final, appealable order is an issue the appellate court was obliged to raise on its own motion because the issue goes to the jurisdiction of the appellate court. 2. WORKERS' COMPENSATION — APPEAL ERROR — ORDER NOT FINAL — APPEAL DISMISSED. — Where the order appealed from was an order of remand that neither awarded nor denied compensation, it was a decision on an incidental matter that was not reviewable because of its lack of finality.

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 rule, orders of remand are not final and appealable; 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.

JAMES R. COOPER, Judge, dissenting.

I would not dismiss this appeal but would reach the merits. On the merits, I would reverse.

MELVIN MAYFIELD, Judge, dissenting.

I cannot agree with the result reached by the majority opinion in this case because it dismisses the appeal but leaves the controversy pending without any guidance as to how it can be resolved.

The problem started when the administrative law judge entered an order dated October 14, 1991, in which his finding number "5" stated, "Claimant is entitled to an award of benefits for medical care provided and to be provided by Dr. Schoedinger for his back condition." There was an appeal from the law judge's order and the order (including finding "5") was affirmed by the full Commission on March 6, 1992.

On June 9, 1992, the attorney for the employer's workers' compensation carrier wrote a letter to the law judge asking for a "clarification" of the law judge's finding number "5". The law judge then issued an opinion that the finding was a mistake on his part as he had intended to "defer making decision on mileage and pre-authorization treatment by Dr. Schoedinger."

This opinion was appealed to the full Commission and by majority vote the Commission in a opinion entered February 26, 1993, held that the law judge had no jurisdiction to act on the matter because the law judge's original order had been appealed to the Commission and it was, therefore, the Commission's order which the insurance carrier wanted clarified. However, the Commission treated the carrier's letter to the law judge as a request for clarification by the Commission and held that the record was clear that it was only the "authorized" medical care provided and to be provided that the law judge had intended to cover in finding "5." Therefore, the Commission remanded the matter to the law judge for the determination of any "unresolved matters" as to this issue.

The claimant appealed to this court and argued that the doctrine of res judicata prevented the Commission from changing the order it had previously entered affirming the law judge's original order of October 14, 1991. This court has today held that the Commission's order is not final and therefore is not appealable. Thus, we have dismissed the appeal and have left the parties, the law judge, and probably the full Commission without any guidance on how to resolve the problem which is still pending.

In the first place, there is one view that we can take that would make it unnecessary to send this case back to the law judge — and that is the result the appellant asks that we reach. In State v. Hatton, 315 Ark. 583, 868 S.W.2d 492 (1994), the State argued that a juvenile division judge erred in refusing to accept the case after the circuit court transferred it to juvenile court. Our supreme court dismissed the State's appeal (thus ending the controversy as to which trial court should try the case) on the holding that the State had failed to file a notice of appeal within the proper time after the juvenile court had first held that the case should be tried in circuit court. Thus, in the instant case it could be held that the appellant should have timely appealed from that part of the law judge's order here involved, made on October 14, 1991, instead of waiting until June 9, 1992, to write the law judge asking for a "clarification" of the law judge's order of October 14, 1991. See also Arkansas State Highway Commission v. Bollinger, 230 Ark. 877, 327 S.W.2d 381 (1959). Indeed, I find it highly unusual that such a request would be made or acted upon, even by an administrative agency, in face of the well-established rule that courts do not issue advisory opinions. See Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992). Moreover, we have held that under the Workers' Compensation Act neither an administrative law judge nor the full Commission has the power or authority to reconsider a decision after the time to appeal that decision has run — except in the specific situations provided by the Act (which are not applicable here). See Lloyd v. Potlatch Corporation, 19 Ark. App. 335, 342, 721 S.W.2d 670, 674-75, (1986).

In the second place, even if we think that a more relaxed view should now be taken, as is the case in administrative agencies other than the Workers' Compensation Commission, see McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994), we should affirm the Workers' Compensation Commission, rather than dismiss the appeal, and let it — and everyone — know what our current view is. As the matter stands, the dismissal of this appeal simply leaves this case hanging and all concerned confused.

I dissent.

ROGERS v. WOOD MANUFACTURING