concurring. I concur with the holding in the majority opinion that the order of the Workers’ Compensation Commission sought to be appealed in this case is not an appealable order. This matter, however, needs a “bright-line” rule by which attorneys may determine whether an order of the Commission is or is not appealable.
As the majority opinion points out, the purpose of the requirement of an appealable order is to prevent piecemeal litigation. But it is not always clear just when an order of the Commission is appealable. The majority opinion also points out that the order does not have to make a final disposition of the entire case but that an order to be appealable “must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter of the controversy.” And the opinion states the “test” for determining appealability is whether the order “puts the Commission’s directive into execution, ending the litigation or a separable part of it.” Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989), is cited in support of these statements.
The language in some of the cases, both before and after Gina Marie Farms, fails to include the phrase “or a separable part of it.” I think it important to keep this phrase in mind. The opinion in Gina Marie Farms explains the decision in a number of cases by applying the “test” of whether the order sought to be appealed “puts the Commission’s directive into execution ending the litigation or a separable part of it.” Only by the application of this test to the statement that “to be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their right as to the subject matter in controversy” can we find any “bright-line” that will explain many of the decisions of the past or serve as a more complete guide for the future.
At first blush, the order in the present case would appear to be appealable since it holds that the appellant American Mutual Insurance Company (now Guaranty Fund, Arkansas Insurance Commission) is liable for the appropriate compensation benefits, and the appellee Argonaut Insurance Company is not liable. This order appears to put the Commission’s directive into execution and to end a separable part of the controversy. But not so. As the majority opinion states, the controversy is between the claimant William Lance Freeman and his employer Tiffany Stand & Furniture Company, neither of which is a real party to this appeal. The real parties to this appeal are the employer’s insurance carriers. Thus, the Commission’s opinion did not end a “separable part” of the real controversy which is between the claimant and his employer.
What may be needed is something akin to Ark. R. Civ. P. 54(b) which allows a judgment to be final to one or more but fewer than all of the claims or parties if the trial court makes “an express determination that there is no just reason for delay” and makes “an express determination for the entry of judgement.” Obviously, this rule of civil procedure does not apply to proceedings in and appeals from the Workers’ Compensation Commission. I think, however, that the careful application of our opinion in Gina Marie Farms, supra, will be helpful in determining whether an order of the Commission is appealable.