NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION III

JESUS ROSTRO

APPELLANT

v.

CARGILL, INC.

APPELLEE

CA 00-1070

MAY 16, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E904266]

AFFIRMED

Jesus Rostro appeals from an order of the Workers' Compensation Commission dismissing his claim. Rostro asked the administrative law judge ("ALJ") to dismiss his claim after the ALJ refused to order appellee Cargill, Inc. to provide a Spanish interpreter to assist Rostro in responding to interrogatories it submitted to him. The ALJ complied, and the Commission affirmed the dismissal. On appeal, Rostro argues that the Commission erred in denying his request for an interpreter and in dismissing his claim. Because Rostro did not properly raise this issue to the Commission, we affirm.

On April 28, 1999, Jesus Rostro filed a request for benefits with the Workers' Compensation Commission. In an August 2, 1999, letter to the ALJ, Rostro requested the appointment of a English/Spanish interpreter to help him answer interrogatories. On August 11, 1999, the ALJ issued a letter denying Rostro's request, stating that there was no statutory authority which required Cargill to pay for interpretive services for responding to discovery requests. The ALJ further deniedRostro's motion for protective order and ordered him to respond to the written interrogatories by September 3. Cargill subsequently requested the ALJ dismiss Rostro's claim for failure to comply with its discovery requests or to refuse to schedule a hearing until Rostro answered its discovery. On October 4, Rostro requested the ALJ dismiss the claim either with or without prejudice so he could file a notice of appeal. The ALJ responded on October 7, refusing to set the case for a hearing until Rostro answered Cargill's discovery requests. On October 14, Rostro again requested that his claim be dismissed either with or without prejudice because he could not respond to the interrogatories. His attorney also recommended that this case, and a companion case involving the same issue, be consolidated for purposes of appeal. On October 19, Rostro's attorney once again requested that the ALJ dismiss the case without prejudice as was done in the companion case, or in the alternative, that the ALJ require Cargill to propound the interrogatories in Spanish. The ALJ dismissed the claim on October 19 by order that provided "[a]t claimant's request and over the objection of the respondent, this claim is dismissed."

Rostro filed a notice of appeal with the Commission, alleging the opinion of the ALJ was contrary to the facts and evidence. Cargill responded by filing a motion to dismiss with the Commission stating that Rostro's appeal was improper because there was no claim, order, or award with respect to benefits that was pending before the Commission. The Commission denied Cargill's motion, and also denied Rostro's request for attorney's fees for prevailing on Cargill's motion to dismiss. The Commission ultimately affirmed and adopted the ALJ's dismissal of Rostro's claim on June 1, 2000.

Rostro's sole argument on appeal is that the Commission erred as a matter of law in failing to appoint an interpreter to assist him in answering Cargill's interrogatories. He relies on the supreme court per curiam order, In re Certification for Foreign Language Interpreters, 338 Ark.827 (1999), as authority for his argument. However, we cannot address the merits of Rostro's argument because there is no evidence in the record before us that this issue was presented to, or decided by the Commission.

The opinion issued by the ALJ was a one-sentence ruling stating only that Rostro's claim was dismissed at his request and over the objection of Cargill. In his notice of appeal to the Commission, Rostro alleged only "The opinion of the [ALJ] is contrary to the facts. The opinion of the [ALJ] is contrary to the evidence. The opinion of the [ALJ] is contrary to the facts and evidence." The notice made no mention of the ALJ's discovery ruling that Rostro wished to challenge. In its opinion, the Commission stated that the ALJ "entered the following findings of fact and conclusions of law" and recited only the ALJ's one-sentence dismissal. Although the Commission further stated that it had "carefully conducted a de novo review of the entire record," the opinion further provided that "[S]pecifically, we find from a preponderance of the evidence that the findings of fact made the ALJ were correct" and affirmed and adopted the decision of the ALJ, including "all findings and conclusions therein." In short, there is nothing in the ALJ's opinion, Rostro's notice of appeal, or the opinion of the Commission that makes any reference to the ALJ's ruling that Rostro is now asking this court to review.

Where the appellant has raised an issue with the Commission, this court can remand if the Commission has failed to make specific findings of fact on the issue, Priest v. United Parcel Serv. 58 Ark. App. 282, 950 S.W.2d 476 (1997), and will address the issue in a subsequent appeal after such findings are made. Cyphers (Priest) v. United Parcel Service, 68 Ark. App. 62, 3 S.W.3d 698 (1999)(holding the Commission erred in refusing to issue a subpeona for a physician as requested and erroneously interpreted its Rule 30). However, we can neither remand nor reach the merits of the appellant's argument where it has not been raised to the Commission in the first instance. SeeClark v. Sbarro, 67 Ark. App. 372, 1 S.W.3d 38 (1999); Thornton v. Bruce, 33 Ark. App. 31, 800 S.W.2d 723 (1990). In affirming this case, we do not address the question of whether an appellant may appeal a dismissal of a claim that he requested or whether such a dismissal is an impermissible attempt to take a non-suit and appeal an interlocutory issue. See Ark. Motor Coaches v. Taylor, 234 Ark. 803, 354 S.W.2d 731 (1962).

Affirmed.

Stroud, C.J. and Pittman, J., agree.