Linda L. King v. Baxter County Regional Hospital and Risk Management Resources

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

LINDA L. KING,

APPELLANT

V.

BAXTER COUNTY REGIONAL HOSPITAL RISK MANAGEMENT RESOURCES,

APPELLEE

CA01-996

MAY 7, 2003

APPEAL FROM WORKERS' COMPENSATION COMMISSION,

NO. E121834

AFFIRMED

Linda King developed carpal tunnel syndrome in May 1991 while she was working as a medical transcriptionist for Baxter County Regional Hospital. She eventually underwent two surgeries for the condition, which was accepted as a compensable work-related injury. She received an impairment rating of nine percent to her left hand after an endoscopic carpal tunnel release was performed in December 1991, and an additional three percent rating was assessed after surgery in March 1993. She returned to work following each surgery but quit work on January 18, 1995.

In May 2000 a hearing was conducted before an administrative law judge on a claim King filed for additional benefits. King contended that she was entitled to temporary partial benefits for a period of time in 1993 and to permanent total disability benefits. She also contended that she was entitled to additional benefits for a psychological injury. The law

judge denied her claim for additional benefits, and the Workers' Compensation Commission affirmed and adopted that decision. King now raises two points of appeal from the Commission's decision: (1) that the Commission erred in refusing to award temporary partial disability benefits between October 10, 1993, and December 19, 1993; (2) that the Commission erred in refusing to find that King suffered a mental injury either as a result of a compensable consequence or as a result of meeting the requirements of Ark. Code Ann. § 11-9-113. Finding no error, we affirm the Commission's decision.

1. Whether the Commission erred in refusing to award temporary partial disability benefits between October 10, 1993, and December 19, 1993.

Temporary partial disability is that period within the healing period in which the employee suffers only a decrease in her capacity to earn the wages she was receiving at the time of the injury. Arkansas State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). King argues that the fact that she had light-duty restrictions during the time frame at issue and the fact that she was placed in a less physically demanding position affirm her decreased capacity to earn wages. We do not agree.

A claimant must prove a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E) (Repl. 2002). Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident. In case of temporary partial disability resulting in the decrease of the injured employee's average weekly wage, there shall be paid to the employee sixty-six and two-thirds percent of the difference between her average weekly wage prior to the accident andher wage-earning capacity after the injury. Ark. Code Ann. §§ 11-9-518(a)(1) and 11-9-520 (Repl. 2002).

King testified that she had a new supervisor when she returned to work three months after the surgery of March 1993, and that on light duty King's only job duties were answering the phone and pulling files. She testified that in September 1993 she was put on minimum wage, with her hourly wage being reduced from $9.58 to $4.25; that she filed an ADA claim after this reduction of wages; and that she was given back her previous job after she filed the claim. She stated that after Christmas of 1993 she was making more money than before she got hurt, but "was making more in 1992." Pay stubs corroborating her testimony were introduced into evidence.

The Commission found that King's testimony and the wage record established a reduction in her hourly rate of pay from $9.58 to $4.25 beginning with the pay period that ended October 10, 1993, and continuing through the pay period that ended December 19, 1993, after which her hourly wage was raised to $9.87. However, the Commission found that King had not proved that this diminution in wage-earning capacity reflected partial disability attributable to her job-related carpal tunnel syndrome. The Commission's opinion included the following explanation:

[D]uring this period the number of hours worked was as high as 72 per pay period, which is not necessarily consistent with temporary disability status. Moreover, the claimant has not proved the amount of her average weekly wage at the time of her injury in 1991 for purposes of measuring the amount of temporary partial disability benefits to which she might otherwise be entitled. In short, the record is inadequate either to measure the temporary partial disability benefits possibly accruing or to determine that the reduction in the claimant's hourly rate of pay was attributable toher injury or disability status rather than to other factors.

(Emphasis added.)

Our workers' compensation statutes clearly require that compensation be based upon the difference between average weekly wages prior to the accident and wage-earning capacity after the injury, see Ark. Code Ann. §§ 11-9-518(a)(1) and 11-9-520 (Repl. 2002), and it is the claimant's burden to prove entitlement to her claim. Ark. Code. Ann. § 11-9-102(E). The stipulated date of this compensable injury was May 1, 1991. Thus, King had the burden of proving, among other things, what wages she had earned before she developed carpal-tunnel syndrome on May 1, 1991.

The Commission, noting that King introduced no evidence of what weekly wage she was earning at the time of her injury, found that she had not proven the amount of her average weekly wage at the time of her injury for purposes of measuring the amount of temporary partial disability benefits to which she might otherwise be entitled. Thus, the Commission's decision displays a substantial basis for the denial of her claim for entitlement to temporary partial disability benefits.

2. Whether the Commission erred in refusing to find that King suffered either a mental injury as a result of a compensable consequence or as a result of meeting the requirements of Ark. Code Ann. § 11-9-113.

The Commission noted that provisions of Act 796 of 1993 changed the requirements of proving the compensability of mental injury or illness. As explained in the Commission's opinion:

If the claimant' s condition is considered a mental injury that arose out of andin the course of the employment after July 1, 1993, it is governed by the provisions of Ark. Code Ann. § 11-9-113 concerning mental injuries or illnesses, which were added by section 8 of Act 796 of 1993. However, if the claimant's condition is a compensable consequence of her compensable carpal tunnel syndrome which arose in 1991, the provisions of Act 796 do not apply.

Before Act 796, compensability of mental injuries depended on whether they were induced traumatically or non-traumatically. A traumatically induced mental injury or illness was compensable where it followed a physical, on the job injury and its symptoms were triggered or precipitated by the physical injury. See., e.g., Boyd v. General Industries, 22 Ark. App. 103 (1987). A non-traumatically induced injury was compensable where the proof demonstrated that (1) the claimant was subjected to more than the ordinary day to day job stress to which all workers are subjected and (2) the psychological injury was causally connected to this stress rather than to other sources. McClain v. Texaco, Inc., 29 Ark. App. 218 (1989). If Act 796 applies to the claimant's condition the claimant must prove that her mental injury or illness is caused by physical injury to her body (since no crime of violence was involved). . . .

The Commission found that under either Act 796 or previous law, King had failed to prove by a preponderance of the evidence that her psychological condition was compensable. The Commission stated that if Act 796 applied, the claim was not compensable because it was causally connected to her demotion of several weeks rather than to a physical injury; and that if the previous standards were applied to the claim, it was not compensable because a reduction in salary is not more than the ordinary day to day job stress to which all workers are subject.

King, her daughter, and three co-workers testified before the administrative law judge that King's personality, behavior, and activities changed after her second surgery and return to work; all essentially stated that she was no longer the person she had been before. King and her co-workers testified variously that Rosie Estes, the new supervisor when Kingreturned, was mean, sharp, and belligerent towards King; that King and another worker seemed to be singled out for this treatment by Estes; that King was assigned a cubicle by herself and not allowed to talk to anyone; and that King became emotional, sometimes crying at work. King stated that everyone turned to look at her during a meeting on carpal tunnel injuries when a supervisor said that one worker had already cost the company $50,000. King testified that she was taking anti-depressant medication at the time of the hearing. She and her daughter testified that King's ability to pursue household chores and recreation was diminished, and that she had become depressed and had attempted suicide. They acknowledged under cross-examination that King's husband was a marijuana user and that her sons also had problems.

Psychiatrist Dr. Robert Yoder testified that he had performed a social-security evaluation of King. He diagnosed her as having major depression and suicidal ideation, and he assigned a 55-75% impairment for mental injury. It was Yoder's opinion that her depression was caused by carpal tunnel syndrome and harassment experienced while she was working. Dr. Douglas Stevens, a clinical psychologist who evaluated King in December 1995, wrote that there was a causal relationship between her demotion at work and her depression, and that she felt worthless and suicidal. Another clinical psychologist, Dr. Winston T. Wilson, evaluated King in March of 1998. His notes under the heading "Working Diagnosis: Axis I: Malingering" state that King told him that she was asking the Workers' Compensation Commission to declare her permanently and totally disabled, but the notes also state his view that she would be a valuable addition to the work force. Herecommended that she be returned to an appropriate job in keeping with the medical and physical limitations of her treating physician.

The Commission, comparing the three medical reports, stated that Dr. Wilson's assessment had the benefit of more extensive testing and did not rely heavily on a brief interview. Assigning greater weight to the assessment of Dr. Wilson, the Commission found that the preponderance of the evidence failed to show that King's psychological condition was caused by the compensable injury arising out of her employment.

King points to the opinion of her treating physician, Dr. Yoder, that her depression was caused by her carpal tunnel syndrome and the harassment she experienced at her workplace. She also relies upon her own testimony and that of her co-workers as proof that she was continually harassed by her supervisors, and was noticeably stressed and depressed as a result of her working conditions. The Commission, however, has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). Given this standard of review, we must also affirm the decision of the Commission on this second point of appeal.

Affirmed.

Gladwin and Vaught, JJ., agree.