concurring. All attorneys who practice workers’ compensation law should take special note of this case, at least to the extent that it deals with what is an appealable order in cases sought to be appealed from the Commission. Suppose you represented one of the parties in the instant case and concluded, as the dissenting opinion does, that the Commission’s order was not an appealable order. Would the majority of this court allow you to appeal the Commission’s order at some later date?
As stated in my concurrence in American Mutual Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991), what is needed is a “bright-line” rule by which attorneys may determine whether an order of the Commission is or is not appealable. I thought this need might have been substantially met by that case, which was decided by the court en banc without a dissent. The majority opinion stated the “general rule” as follows: “To be final, the order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy.” The opinion then made a significant contribution by stating, “We have held that the test for determining whether an order of the.Workers’ Compensation Commission is appealable is whether it puts the Commission’s directive into execution, ending the litigation or a separable part of it.” 33 Ark. App. at 84. That test is the rule that Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989), said should be added to the “general rule.”
Today, however, even though the majority opinion in the instant case sets out a rule of finality which combines the general rule and the additional language used in Gina Marie Farms, the opinion clouds the matter by stating in the last paragraph that “we express no opinion concerning the appealability of an order granting a vocational rehabilitation examination where benefits under [Ark. Code Ann.] § 11-9-505(d) are not awarded.” Moreover, the dissenting opinion appears to recede from the unanimous per curiam opinion in Gina Marie Farms and from the en banc opinion in American Mutual Ins. Co. v. Argonaut Ins. Co., which was adopted without dissent.
As to the dissenting opinion in the instant case, I would point out that it overlooks the language in Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978), where the Arkansas Supreme Court said:
The test of finality, however, is not whether the order settles the issue of title as a question of law. To be final the decree must also put the court’s directive into execution, ending the litigation or a separable branch of it. On this controlling point Chief Justice Cockrill’s entire opinion in Davie v. Davie, 52 Ark. 224, 12 S.W. 558, 20 Am. St. Rep. 170 (1889), is applicable, . . .
264 Ark. at 277. We relied upon that language in Gina Marie Farms when we said:
In Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978), the court extracted from the early case of Davie v. Davie, 52 Ark. 224, 12 S.W. 558 (1889), the rule — “To be final the decree must also put the court’s directive into execution, ending the litigation or a separable branch of it.” 264 Ark. at 277.
28 Ark. App. at 94. Whether the dissent in the instant case makes a distinction between the words “severable” and “separable” is not clear; however, in Festinger our supreme court used the word “separable” in describing what is necessary for an order to be final and appealable. Also, the opinion in Gina Marie Farms, which relies upon the test of finality set out in Festinger, adequately explains, in my view, the cases discussed in Gina Marie Farms. Obviously, other explanations are possible. But I believe this court should settle as nearly as possible on a rule or test that will serve as a bright-line for future guidance of the bar and any others interested in this issue. Therefore, I agree with the result reached by the majority on the issue before us, and I agree with the following rule stated by the majority opinion.
For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy, putting the court’s directive into execution and ending the litigation or a separable branch of it.
Of course, it is true that all judges on a multijudge court will not always agree on the application of any rule under all the different circumstances in which the issue may arise. Personally, I wish the majority opinion in this case had not stated that “we express no opinion concerning the appealability of an order granting a vocational rehabilitation examination where benefits under [Ark. Code Ann.] § 11-9-505(d) are not awarded.” So, even if a majority of the members of this court are now in agreement with the rule or test of a final order as set out in today’s majority opinion, this does not mean that a majority of the judges of this court will agree with the attorneys as to the finality of every order sought to be appealed. In Stafford v. Diamond Construction Co., 31 Ark. App. 215, 793 S.W.2d 109 (1990), the attorneys on both sides thought the Commission’s order was appealable but a majority of this court did not agree. I think this is an important point to remember. I know of no case which holds that the failure to appeal from an order because an attorney did not think it was appealable is a reason or excuse which will allow the appellate court to review the order at a latter date.
Therefore, I suggest it is better to have an appeal dismissed because there is no final, appealable order than to have an appeal dismissed because the appeal was not taken in time. In Stafford, the employer’s insurance carrier filed a motion to dismiss the claimant’s appeal even though the carrier thought the better rule was to allow the appeal. But the motion to dismiss was allowed and neither party had to file a brief on the merits of the appeal and neither party was foreclosed from raising the issue again after a final, appealable order has been entered.