DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA00-1392

June 13, 2001

VAUGHAN TIRE COMPANY, INC., AN APPEAL FROM ARKANSAS

UNION STANDARD INSURANCE WORKERS' COMPENSATION

COMPANY, Carrier COMMISSION [E904590]

APPELLANT

V.

LAWRENCE HENDRIX

APPELLEE APPEAL DISMISSED

Vaughan Tire Company appeals from an order of the Workers' Compensation Commission in which the Commission found that appellee Lawrence Hendrix proved that his carpal-tunnel injury was work-related and was the major cause of his disability or need for treatment. Appellant argues that the Commission's decision is not supported by substantial evidence. Appellant further argues that the Commission violated the legislative intent of Arkansas Code Annotated section 11-9-201 (Repl. 1996) in appointing Special Commissioner David Greenbaum to serve as the employer representative on his case. We do not reach the merits of appellant's arguments because we find the order in this case is not final. Therefore, we dismiss the appeal.

Appellee was employed by appellant for nearly twenty-five years. For approximatelyone hour per day, he cleaned two bathrooms and three offices. This required him to clean toilets, to mop, and to vacuum. For approximately two hours per day, appellee made deliveries. For the remainder of his shift, approximately five hours per day, he changed and repaired tires, as many as twenty in a four-hour period, using an air-pressure high impact wrench or a four-wheel lug wrench. Occasionally, he was required to use a hammer to break the tire away from the rim, and he also manually pulled the tubes from the inside of the tires. Appellee experienced pain and numbness in his upper extremities for several years before he finally sought treatment in 1997.

After an intensely busy day on April 3, 1999, appellant sought medical treatment for pain in both wrists and hands. When conservative treatment failed to provide improvement, appellee was referred to Dr. Michael Weber, an orthopedist who performed surgical carpal tunnel releases on appellant's left wrist on May 10, 1999, and on his right wrist on June 8, 1999. He was released to return to work on July 26, 1999, with no impairment and no restrictions. However, at the time of the hearing before the Administrative Law Judge (ALJ), appellant had not returned to work and had sought further treatment from Dr. Charles Schultz, a neurologist.

Appellant controverted appellee's entitlement to benefits, and a hearing was held before an ALJ. Dr. Weber offered no opinion in his deposition testimony with regard to whether appellant's symptoms were work-related, although he stated that it was unlikely that appellee's work was the cause of his symptoms, since he had performed the same duties for twenty-five years and had actually performed lighter duties for the past ten years. Dr.Schultz opined that appellee had sustained a twenty percent impairment to each hand, based on EMG results, nerve conduction studies, and appellee's continued complaints of pain, numbness, and muscle weakness.

The ALJ entered an order on January 27, 2000, finding that appellee failed to prove his injury was work-related. The ALJ placed greater weight on Dr. Weber's opinion, finding that he was a surgical specialist with a long-standing practice. Appellee subsequently appealed to the Full Commission, which reversed the decision of the ALJ.

The Commission noted that the ALJ relied more heavily on Dr. Weber's opinion than Dr. Schultz's opinion, but found that Dr. Weber "really has no opinion" with regard to the causation issue. The Commission noted, by contrast, that Dr. Schultz "emphatically" opined that appellant's carpal tunnel syndrome was causally related to his employment. Citing appellee's description of his job duties and the development of his condition, Dr. Weber's refusal to state an opinion, Dr. Schultz's unequivocal opinion regarding causation, and the absence of any non-work related explanation for his condition, the Commission found that appellee proved his entitlement to benefits. On August 10, 2000, the Commission entered an order awarding appellee attorney's fees and remanding the case back to the ALJ for a determination of benefits.

On September 6, 2000, appellant filed a motion for reconsideration with the Commission with respect to the sufficiency of the evidence and the appointment of Special Commissioner David Greenbaum. On September 8, 2000, appellant filed a notice of appeal with this court, raising two issues: 1) that no substantial evidence supported theCommission's order; and 2) that the Commission's appointment of Special Commissioner Greenbaum to serve as an employer representative in this claim was contrary to the intent of Arkansas Code Annotated section 11-9-201 (Repl. 1996).

Because the Commission remanded to the ALJ for a determination of benefits, we hold that the Commission's order in this case is not a final, appealable order.1 Appeals from the Commission to this court shall be allowed as in other civil actions. See TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992). For an order to be appealable, it must be final. See Rogers v. Wood Mfg., 46 Ark. App. 43, 877 S.W.2d 94 (1994). To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. See Rowell v. Curt Bean Lumber Co., 73 Ark. App. 237, 40 S.W.3d 344, (2001). Ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. See id. As a general rule, orders of remand are not final and appealable. See id.

Here, the Commission found that appellee had proved by a preponderance of the evidence that his injury was work related. The Commission specifically stated, "we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that his carpal tunnel syndrome is causally related to his employment." However, because the ALJ had found no entitlement to benefits, the Commission remanded for the ALJ to determine the extent of appellee's rights to benefits. 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. See Humphrey v. Faulkner Nursing Ctr., 61 Ark. App. 48, 964 S.W.2d 224 (1998); Arkansas State Hwy. Comm'n v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965).

As this court stated in Baldor Electric Co. v. Jones, 29 Ark. App. 80, 82, 777 S.W.2d 586, 588 (1989):

Although in the present case the Commission found a causal connection between the employment and the injury, the extent of liability has not been determined. There has been no determination of [a] healing period, disability, or reasonable medical expenses. In other words, in order to be a final order, the order must either deny or award some compensation, and until that occurs an order is not appealable.

Similarly, here the Commission found a causal connection between the employment and the injury, but remanded to the ALJ to determine the extent of appellant's liability. Therefore, pursuant to Baldor Electric, supra, and the other authorities noted herein, we must dismiss this appeal because it is not based on a final order.

Appeal dismissed.

Vaught and Roaf, JJ., agree.

1 We note that at the time appellant's record was filed with this Court, either the Commission had not ruled on the motion for reconsideration or else appellant failed to include its order.