As the era of widespread dismissals of appeals has wound down over the last couple of years, there is one area where the Court of Appeals still actively polices its jurisdiction–interlocutory appeals. Usually, these cases follow a predictable pattern: the trial court issues an interlocutory order, the losing party appeals, and the appellee moves to dismiss the appeal as interlocutory and not affecting a substantial right of the appellant. Rare is the case where the parties actually agree that the order appealed affects a substantial right. Can the parties invoke the jurisdiction of the Court of Appeals by consent?

No, says the Court of Appeals. In Thomas v. Contract Core Drilling & Sawing, No. COA10-438, issued today, the Court of Appeals was called upon to resolve whether an Industrial Commission order was immediately appealable, partially appealable, or wholly interlocutory. In the underlying Industrial Commission case, the claimant was injured at work and sought workers’ compensation from his employer. Factual disputes arose as to whether the claimant aggravated a pre-existing injury or whether his injuries resulted from the workplace accident, and whether the claimant remained disabled after a surgery to repair his injured knee. The Commission ultimately issued an order finding that the claimant’s injuries arose from his workplace accident, and awarded him temporary total disability compensation for the period of time between the accident and the surgery. The Commission reserved for later determination the issue of whether the claimant remained disabled after the surgery.

In the employer’s subsequent appeal of the order, the employer sought review of the entire order. Predictably, the claimant argued that the portion of the order reserving the question of his post-surgery disability compensation was interlocutory and not immediately appealable. Interestingly, however, the claimant agreed with the employer that the question of whether his injuries arose from a workplace accident was ripe for appeal.

The consensus of the parties wasn’t enough to confer jurisdiction, the Court held, by Chief Judge Martin. First, the Court noted that it could “find no precedent to treat an Award and Opinion in the piecemeal, partially interlocutory and partially non-interlocutory, manner as [claimant] urges us to do.” Slip op. at 5. More significantly, the Court found that the dispute boiled down to a question of money. At the end of the case, once the Commission issues its final order, either the claimant will be found to have been injured at work and will be entitled to at least some compensation, or he won’t be, and won’t be paid a dime. Where the “sole issue is the payment of money pending the litigation,” there simply is no substantial right that requires immediate review. Id. at 7.

The take-home lesson is plain: the Court of Appeals has no appetite for parsing orders to find nuggets of immediate appealability. For this reason, the Court rejected claimant’s “invitation” to review the case piecemeal, lest it “throw open the appellate process to almost limitless fragmentary appeals.”

Of course, as evidenced in this case, an interlocutory appeal can tie up a case for a year or more even if ultimately dismissed.

The opinion is Thomas v. Contract Core Drilling & Sawing, No. COA10-438, and can be found at