ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

JACK ESTRIDGE

APPELLANT

V.

WASTE MANAGEMENT

TRANSPORTATION INSURANCE

COMPANY and SECOND INJURY

FUND

APPELLEES

CA 02-208

NOVEMBER 6, 2002

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E500479]

APPEAL DISMISSED

This is the second appeal of this case. In the first appeal by appellant Jack Estridge, we affirmed the Workers' Compensation Commission's decision to deny benefits in an unpublished opinion. Estridge v. Waste Management, CA99-1208 (Ark. App. May 17, 2000). The supreme court granted review and reversed the Commission's decision. See Estridge v. Waste Management, 334 Ark. 276, 33 S.W.3d 167 (2000). Despite appellant's suggestion that the present appeal should be heard by the supreme court pursuant to Ark. R. Sup. Ct. 1-2(a)(7) (2002) because this is a second appeal, jurisdiction would properly lie in this court if the order appealed were final. See Cagle Fabricating and Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993); Ark. Code Ann. § 11-9-711(b) (Repl. 2002).

Appellant appeals the decision of the Commission that remanded to the administrative law judge the issue of whether appellant's compensable injury was the major cause of his

subsequent eleven percent permanent partial impairment rating. Appellant argues that the Commission erred in remanding the case to the administrative law judge because the supreme court's decision on review was res judicata of those facts. Because the order of remand issued by the Commission is not a final order, we dismiss the appeal.

The issue of compensability of the injury itself and the medical treatment that followed was resolved by the first appeal when the supreme court held that appellant proved by a preponderance of the evidence that his work-related injury was compensable, as was the resulting treatment and surgery, and that the Commission's finding to the contrary was not supported by substantial evidence. See Estridge v. Waste Management, 334 Ark. 276, 33 S.W.3d 167 (2000). The supreme court did not hold that a permanent impairment rating should have been awarded.

Upon remand following Estridge, supra, the Commission found that it had not rendered any findings on the compensability of the permanent partial impairment rating when it denied benefits. Though the administrative law judge had initially awarded benefits including a permanent partial disability rating, this finding was reversed by the Commission in its de novo review. The Commission reviews an administrative law judge's decision de novo, and it is the duty of the Commission to conduct its own fact finding independent of that done by the administrative law judge. Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996). After the first appeal was resolved, the Commission remanded the issue to theadministrative law judge for the purpose of rendering "more adequate findings" on the causal relationship between the compensable injury and the permanent impairment rating.

Appeals from the Commission to this court are allowed as in other civil actions. TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992). For an order to be appealable, it must be final. Daniel v. Barnett, 78 Ark. App. 19, 76 S.W.3d 916 (2002); 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. Id. The appellate courts review the decision of the Commission, not that of the administrative law judge. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. TEC, supra. As a general rule, orders of remand are not final and appealable. Rogers, supra. There remains to be determined a finding on the issue of major cause of the impairment rating, preventing the Commission's order on appeal from being a final one for us to review.

We dismiss the appeal.

Vaught and Baker, JJ., agree.