Opinion
CLAIM NO. E217992
ORDER FILED NOVEMBER 18, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
ORDER
The claimant appeals an Order of Dismissal filed by the Administrative Law Judge on July 15, 1996. After our review of this matter, we find that the Administrative Law Judge dismissed the claim without prejudice to the subsequent refiling of the claim. Therefore, we find that the Administrative Law Judge's decision was not a final, appealable order. Consequently, we find that the claimant's appeal must be dismissed.
The Commission has previously adopted the rules regarding appealability adopted by Arkansas's appellate courts. In this regard, we have previously found that, to be appealable, an order "must dismiss parties from the court, discharge them from the action, or conclude their rights to the subject-matter in controversy." Donald Phylant v. R. L. Johnson Son, Inc., Full Workers' Compensation Commission, June 23, 1987 (Claim No. D505505);David Nale v. Davis Construction Co., Full Workers' Compensation Commission, June 23, 1987 (Claim No. D513236) citing Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943); H. E. McConnell v. Sadle, 248 Ark. 1183, 455 S.W.2d 880 (1970). The Commission subsequently also adopted the refinement to the rule enunciated by the Court of Appeals inGina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989). See, Tommy Stafford v. Arkmo Lumber Co., Full Workers' Compensation Commission, August 10, 1989 (Claim No. D902075). In Gina Marie Farms, the Court stated that in order to be appealable, a decree must "put the court's directive into execution, ending the litigation or a separable branch of it."
It is a well-settled rule that an order which is not a final order is not appealable. Dodd v. Bonds, 220 Ark. 951, 251 S.W.2d 587 (1952). The Commission has previously held that orders of dismissal which are without prejudice are not appealable orders. Nale, supra; Phylant, supra. A dismissal with prejudice, in effect, acts as a denial of compensation and ends the litigation. Therefore, a dismissal with prejudice is reviewable by the Full Commission. However, a dismissal without prejudice does not act as a denial of compensation or end any portion of the litigation. The claimant may refile the claim and pursue litigation of the claim on its merits. Ergo, a dismissal without prejudice is not a final, appealable order.
The Administrative Law Judge dismissed this claim and relied upon Commission Rule 13. However, the Administrative Law Judge did not indicate whether the dismissal was with or without prejudice. The Commission has previously held that, with respect to dismissals under Commission Rule 13, it prefers dismissals without prejudice.See, Linwood Jenkins v. Georgia Pacific Corporation, Full Workers' Compensation Commission, May 5, 1992 (Claim No. D806269), Laura Hutcheson v. North Arkansas Poultry, Full Workers' Compensation Commission, October 23, 1991 (Claim No. D902143) and James Woods v. Arkansas Waste Disposal, Full Workers' Compensation Commission, May 2, 1990 (Claim No. D015483). The Arkansas Supreme Court has also consistently indicated a preference for dismissal without prejudice. See, Professional Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982), Cory v. Mark Twain Life Insurance Co., 286 Ark. 20, 688 S.W.2d 934 (1985). Accordingly, we find that the dismissal in the present case was without prejudice to the subsequent refiling of the claim. Therefore, we find that the Administrative Law Judge's July 15, 1996, order was not a final appealable order and we dismiss the claimant's appeal.
We wish to point out that the Commission does have the authority to dismiss a claim with prejudice without violating the claimant's due process. Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988). The Commission stated in Laura Hutcheson, supra:
Consequently, we find that the Commission has the same inherent power to dismiss appropriate cases with prejudice. Therefore, the Commission may enter an order of dismissal with prejudice; however, the Commission must review each application for dismissal on its merits and dismiss claims with prejudice only when necessary to prevent abuse of the Arkansas Workers' compensation law.
A claimant may not summarily refile a claim merely because the Administrative Law Judge dismissed the claim under Commission Rule 13. A claimant has every right to refile a meritorious claim. However, claims should only be filed when reasonable grounds exist to do so. Moreover, a claimant who automatically refiles a claim without reasonable grounds to do so runs the risk that the costs of the action may be imposed against them under Ark. Code Ann. § 11-9-714 (Repl. 1996). The Court of Appeals in the case of Johnson v. Triple T Foods, ___ Ark. App. ___, ___ S.W.2d ___ (1996) affirmed a decision by the Commission imposing a sanction on claimant's attorney. In Johnson, the Court stated:
We think it clear that the specific authority to investigate claims granted to the Commission carries also the authority to make such orders and impose such sanctions as are reasonably necessary to carry out that purpose. Harrington Constr. Co. v. Williams, 45 Ark. App. 126, 872 S.W.2d 426 (1994).
It appears that in the present case there are no justiciable issues that remain to be litigated. In fact, the claimant admitted that there were no justiciable issues that remained. In addition, evidence was presented that the claimant was paid all the benefits to which she was entitled. The claimant's attorney is no doubt fully aware of the consequences should he refile a non-meritorious claim.
Lastly, we note that the claimant argued to the Administrative Law Judge that he has no authority to dismiss the claim. We find this argument totally without merit. The Arkansas Court of Appeals stated in Harrington Constr. Co. that:
Pursuant to Ark. Code Ann. § 11-9-205 (a) (a) (A) (1987), the Workers' Compensation Commission is specifically authorized to make such rules and regulations as may be found necessary to carry out its duties. Subsection (c) of that statute charges the referee (Administrative Law Judge in the 1996 Repl. volume) with the duty of conducting hearings, investigations, and making such orders as are required by any of the Commission Rules.
Under the authority of Ark. Code Ann. § 11-9-205 (a) (1) (A) (Repl. 1996) the Commission promulgated Rule 13. Rule 13 allows the Commission or the Administrative Law Judge to enter an order dismissing a claim upon reasonable notice to all parties. There is no evidence that the claimant did not receive notification of the respondent's motion to dismiss or the Administrative Law Judge's order of dismissal.
IT IS SO ORDERED.
Commissioner Humphrey dissents.