CLAIM NO. F002244
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MAY 14, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by HONORABLE ROBERT HENRY, III, Attorney at Law, Little Rock, Arkansas.
ORDER
This case is once again before the Full Commission on respondents’ Motion to Dismiss Appeal and claimant’s attorney’s Motion to Withdraw as Counsel. For the reasons stated below, we find that both motions should be granted.
In support of their Motion to Dismiss Appeal, the respondents assert that the claimant’s appeal is from a non-final and non-appealable order of the Administrative Law Judge. In his brief on appeal, the claimant asserts that he appeals from the pre-hearing order because the pre-hearing order “violates due process of law and ACA 11-9-705,” and is designed to work undue hardship on the claimant and his attorney;” and that “the ALJ refused to allow to supplement or amend the order in an equitable way, but was/is designed to discriminate against a claimant and squeeze a claimant out of the ability to obtain prehearing essentials and/or a fair hearing.” The claimant specifically complains about the Administrative Law Judge’s 50-page limit on exhibits; the Administrative Law Judge’s failure to require specificity as to the defense of respondents in the pre-hearing order; the Administrative Law Judge’s setting unreasonable time limits for exhibits to be filed and depositions to be taken; and the Administrative Law Judge’s refusal to allow the claimant to supplement pre-hearing filings. The claimant’s attorney also states in his brief on behalf of the claimant on appeal that “the only way I’ll stay in this case is if it is assigned to ALJ Andrew L. Blood. . . .”
The claimant’s attorney also filed a response to the respondents’ Motion to Dismiss Appeal styled ” Claimant’s Reply and Motion to Withdraw as Attorney of Record.” In this response, the claimant’s attorney states “[c]laimant’s attorney does not want to proceed before an ALJ whom he knows has not been and will not be fair, and is employer/respondent oriented and will not do otherwise.” He further states, “[a]ssign this case to Judge Andrew L. Blood who is fair, and you will see respondents’ attorney cringe. . .OTHERWISE, please grant claimant’s attorney to withdraw and to which claimant has already agreed.”
As to the respondents’ Motion to Dismiss Appeal, we find that the claimant’s appeal is from a non-final and thus non-appealable order of the Administrative Law Judge. An appealable order is one that is final Arkansas Mutual Insurance Co. v. Argonaut Insurance Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991). 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. TEC v. Faulkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992). Ordinarily, an order of the Commission is reviewable only at the point that it awards or denies compensation. Interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality. TEC, supra. The pre-hearing order of the Administrative Law Judge, from which the claimant appeals, did not award or deny compensation, dismiss the parties, or conclude their rights as to the subject matter in controversy. See, e.g., Garrett v. Baptist Health, Full Commission Opinion of October 23, 2000 (F003108). Therefore, we hereby grant respondents’ Motion to Dismiss Appeal.
As to the claimant’s attorney’s Motion to Withdraw as Counsel for the claimant, the claimant’s attorney’s motion states that the claimant has consented to his withdrawal as counsel. The claimant’s attorney’s motion states that he wishes to be withdrawn as counsel unless the Full Commission orders this case to be re-assigned to a different Administrative Law Judge. The Full Commission will not entertain the claimant’s attorney’s request to re-assign this case to a different Administrative Law Judge. Therefore, we hereby grant the claimant’s attorney’s Motion to Withdraw as counsel for the claimant.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner