Tyrone Terrell v. Arkansas Trucking Service and Gibraltar National Insurance Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

TYRONE TERRELL

APPELLANT

V.

ARKANSAS TRUCKING SERVICE

and GIBRALTAR NATIONAL

INSURANCE CO.

APPELLEES

CA 02-638

FEBRUARY 5, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. E512351]

AFFIRMED

This is the second appeal in this Worker's Compensation case that originated in 1995. The history of this case is long but is necessary for an understanding of the present appeal. Appellant Tyrone Terrell suffered an admittedly compensable injury on August 10, 1995, while in the employ of appellee Arkansas Trucking Service as a truck driver. On that date, Terrell was driving when his truck collided with another truck. Terrell claimed to have struck his head on the windshield in the wreck. Terrell suffered injuries to his shoulder, neck, right leg, and low back. As a result, appellee accepted the injury as compensable and paid temporary total disability benefits, provided medical care, and paid a nine percent permanent partial disability rating to the body as a whole. Dr. Daniel Metzger released Terrell as maximally medically improved on January 19, 1996. Benefits were paid through January 26, 1996.

In the midst of treatment for physical ailments, Terrell was also seen by a psychologist, who referred Terrell to a psychiatrist for depression and anxiety attributed to his physical injuries. Appellant requested a psychological evaluation and continued treatment for depression at the employer's expense, which appellee refused. After fully litigating that issue, appellant prevailed before us on appeal in 1998. We ordered appellee to provide Terrell with a psychological evaluation by a licensed psychiatrist or psychologist, and based upon those results, to determine if the psychological injury was compensable as a result of injuries he sustained in the accident. Terrell v. Arkansas Trucking Serv., Inc., 60 Ark. App. 93, 959 S.W.2d 70 (1998).

Thereafter, the Commission issued an order directing that the employer provide an evaluation and remanding the claim to the administrative law judge for further proceedings to determine the extent of benefits, if any, to which Terrell might be entitled. The ALJ determined that Terrell was entitled to temporary total disability benefits from the date of his motor vehicle accident in 1995 through January 1996, and continuing to a date yet to be determined. Appellee appealed to the Commission, arguing that Terrell was not temporarily totally disabled after January 19, 1996, even if he suffered a mental injury. The Commission found in its de novo review that Terrell was still in his healing period from his psychological injury (major depression with psychotic features), which resulted from his compensable physical injury. Nevertheless, the Commission found (1) that Terrell was limited by Ark. Code Ann. § 11-9-113(b)(1) (Repl. 1996) to twenty-six weeks of disability benefits, and (2) that any award for disability attributable to physical injury was beyond the scope of theremand order of the Court of Appeals and the Commission. This order of the Commission was filed on March 9, 2000. The twenty-six weeks of disability benefits were paid, and psychological treatment was authorized.

On August 20, 2001, the matter came once again before the ALJ to determine Terrell's entitlement to additional psychological treatment, vocational rehabilitation, and wage loss, which appellee resisted.

Terrell testified that he presented to Dr. Deere in Dallas for the initial psychological evaluation, and he was intermittently given medication, which Terrell could not identify, but he has not been seen in person by Dr. Deere since August 1998. Terrell did not provide any documentation or prescription bottles to verify that he was prescribed medication or what those were. In any event, Terrell admitted that he did not take the medication regularly, explaining that he did not believe that it benefitted him, that on occasion he could not afford the medication, and that sometimes he just forgot to take the medication. As for employment, Terrell explained that he lived with his parents in Dallas, that he possessed a regular driver's license and made the six-hour drive to Arkansas himself for the hearing, but that he did not do any truck driving since the accident in 1995. Terrell said that he worked odd jobs occasionally such as salvaging cans, moving equipment and chairs at the Dallas Convention Center, and reporting to the labor hall for job assignments. Terrell believed that he could not drive a commercial truck due to his medications, his psychological injury, and residuals from his physical injury, such that he was permanently and totally disabled. Terrell never presented himself back to appellee in an effort to regain his position as a truck driver.

The ALJ was presented evidence demonstrating that in June 2001, appellee had Terrell undergo a vocational rehabilitation evaluation, an independent psychological evaluation, and an independent physiatrist's evaluation. The reports generated from these evaulations noted that Terrell had significant subjective complaints and symptom magnification, no physical limitations, and a questionable credibility scale. All of these providers suggested that Terrell return to the work force immediately; none suggested physical or mental treatment.

The ALJ found in a decision dated November 16, 2001, that Terrell failed to prove entitlement to vocational rehabilitation or any permanent partial disability or wage loss in excess of that already paid, that no approved psychological treatment had been denied Terrell when no evidence supported that he had ever sought it after August 1998, and that no further psychological treatment was reasonable or necessary. On March 15, 2002, the Commission affirmed and adopted the ALJ's decision. Terrell filed a timely notice of appeal from the March 15, 2002, order.

We first acknowledge appellee's suggestion to affirm this appeal because Terrell failed to file a brief in proper form. Indeed, this pro se appeal brief is deficient in a number of respects. Among them, Terrell neglected to insert a table of authorities, to include in the addendum the opinion on appeal, or to abstract essential portions of the record, all in violation of Ark. Sup. Ct. R. 4-2(a)(4), (5), and (8) (2002). Pro se appellants are held to the same abstracting standards as attorneys. Qualls v. White, 342 Ark. 681, 683, 30 S.W.3d 735, 736 (2000). However, because appellee cured many of the deficiencies, and we can discernthe issues with ease, we exercise our discretion to consider the merits of this appeal and not remand to Terrell to provide a compliant brief. See Ark. Sup. Ct. R. 4-2(b) (2002).

On appeal in workers' compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Workers' Compensation Commission's findings and will affirm if those findings are supported by substantial evidence. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). If reasonable minds could reach the conclusion of the Workers' Compensation Commission, its decision must be affirmed. Id. The appellate court cannot undertake a de novo review of the evidence and is limited by the standard of review in workers' compensation cases. Id. With these standards in mind, we examine the merits of the appeal, and we affirm.

Appellant argues that because he was not maximally medically improved from his mental or physical injury, he should be entitled to additional benefits. We deem the proof ample to support the ALJ's and the Commission's conclusions to the contrary. Substantial evidence supports the conclusion that Terrell failed to prove entitlement to vocational rehabilitation or any permanent partial disability or wage loss in excess of that already paid, that no psychological treatment had been denied Terrell, and that no further psychological treatment was reasonable or necessary.

Appellant makes no argument on appeal that he is entitled to vocational rehabilitation, apparently conceding the correctness of the Commission's decision on this point. Even had he made the argument, we would affirm because such benefits are available only to employees who return for work and are unreasonably refused to be returned by the employer. See Ark. Code Ann. § 11-9-505 (Repl. 2002). No facts support application of vocational rehabilitation in this instance.

Permanent and total disability is awarded when an employee is unable, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2002). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998). The Commission should consider, in the wage-loss determination, medical evidence and other matters affecting wage-loss such as the claimant's age, education, and work experience. Ark. Code Ann. § 11-9-522(b)(2002). Terrell was released from a physical standpoint on January 19, 1996. Terrell said himself that he could, and occasionally did, physical labor work when he needed money. Terrell testified that he had not looked for any other kinds of steady employment since 1996 and had allowed his truck driving license to lapse. There were several expert opinions submitted as evidence to support that Terrell was able to work, mentally and physically. Substantial evidence supports the finding that Terrell is not permanently and totally disabled or that he suffered additional wage loss due to his work injuries.

The Commission's decision is also supported by substantial evidence regarding the denial of additional psychological treatment. Terrell testified at the hearing that he had not attempted to see a psychiatrist since August 1998. The Commission found Terrell's testimony that he occasionally took some unnamed medications for his mental conditions as lacking in credibility. Moreover, Terrell claimed that the alleged medications, when he did take them, did not benefit him. The independent psychological evaluation suggested that psychological intervention was inappropriate for him and that he would not benefit by it. In short, Terrell failed to prove that he had sought, was denied, or required any further psychiatric treatment.

To the extent that appellant attempts to argue the propriety of the Commission's order entered on March 9, 2000, two years prior to the March 15, 2002, order on appeal, we reject his arguments as untimely. Arkansas Code Annotated section 11-9-711(b) (Repl. 2002) provides that a compensation order or award of the commission shall become final unless a party to the dispute shall, within thirty days from receipt by him or her of the order or award, file notice of appeal to the court of appeals. The findings made in the March 9, 2000, order have long since become final.

Affirmed.

Crabtree, J., agrees.

Pittman, J., concurs.