Opinion
CLAIM NO. F213628
ORDER FILED DECEMBER 15, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HON. JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HON. MELISSA ROSS, Attorney at Law, Little Rock, Arkansas.
ORDER
The claimant appeals an Order filed by the Administrative Law Judge on July 21, 2003, denying the respondent's motion to dismiss for failure to prosecute. The claimant did not file a brief on appeal and did not clarify in his Notice of Appeal. Since the claimant prevailed on the motion and the claim was not dismissed, it is assumed that this appeal is solely on the denial of attorney's fees. Based upon our de novo review of the entire record, we find that the Administrative Law Judge's Order is an interlocutory order and is not appealable. Therefore, we find that the claimant's appeal should be dismissed and that this matter should be returned to general files until the parties are prepared to proceed to a hearing on the merits.
In Spears v. George's, Full Commission Opinion Filed November 17, 1997 (Claim No. E417491), the Commission stated:
As a general rule, workers' compensation orders are ordinarily reviewable only at the point where they award or deny compensation. TEC v. Falkner,
38 Ark. App. 13, 827 S.W.2d 661 (1992). Consequently, a party may apply for review of an administrative law judge's decision as a matter of right only at the point when the decision effectively grants or denies compensation. An interlocutory order is provisional or preliminary and does not finally determine any portion of the litigation. Unlike a final order, an interlocutory order is subject to change during the pendency of an action to meet the exigencies of a case.
In Humphrey v. Faulkner Nursing Center, 61 Ark. App. 48, 964 S.W.2d 224 (1998), the Court found that "[f]or 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."
In TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992), the Arkansas Court of Appeals found that a Commission order requiring the respondent to pay for an independent medical evaluation following the claimant's petition for a change of physician was not a final, appealable order. Further, the Court found that "the commission's directions that appellant pay Dr. Hixson a fee for the evaluation and pay appellee an attorney's fee for the change of physicians yet to be determined were merely incidental thereto."
In the present claim, the Administrative Law Judge denied the respondent's motion to dismiss. The order did not dismiss a party from the court, discharge a party from the action or conclude a party's rights as to the cause of action. Therefore, we find that this matter is interlocutory and is not a final appealable matter that can be presented to the Commission. Accordingly, we find that the claimant's appeal should be dismissed and that this file should be returned to general files until such time that the parties are prepared to proceed to a hearing on the merits.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman _______________________________ SHELBY W. TURNER, Commissioner _______________________________ KAREN H. McKINNEY, Commissioner