MWCC NO. 96 01255-G-1643
STEPHANIE KURC BLAIR CLAIMANT
vs.
LADY LUCK RHYTHM & BLUES, MAGNOLIA-LADY
EMPLOYER
SELF-INSURED
REPRESENTING CLAIMANT:
Honorable Charles Baglan, Attorney at Law, Batesville,
Mississippi
REPRESENTING DEFENDANT:
Honorable Richard M. Edmonson, Jr., Attorney
at Law, Jackson, Mississippi
The Commission heard the above styled cause on March 26, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Employer/Carrier's "Petition for Review" and "Motion to Admit Additional Evidence," by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated October 4, 2000 and the "Motion to Admit Additional Evidence" filed herein by the Employer/Carrier is hereby overruled.
SO ORDERED, this the 27th day of March, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC No. 96 01255-G-1643
STEPHANIE KURC BLAIR CLAIMANT
vs.
LADY LUCK RHYTHM & BLUES, MAGNOLIA LADY, INC. EMPLOYER
REPRESENTING CLAIMANT:
Charles Baglan, Esq., P. O. Box 1289, Batesville, MS 38606-1289
REPRESENTING EMPLOYER:
Richard M. Edmonson, Jr., Esq., P. O. Box 13669, Jackson, MS 39236-3669
On January 15, 1996, claimant was injured in the
course of her employment as a valet parking attendant for Lady Luck Rhythm
and Blues. The employer paid claimant medical benefits and temporary total
disability benefits for a period of time. The primary issues to be resolved
are claimant's average weekly wage on the date of injury and the extent
of disability resulting from her admittedly compensable injury.
There are four issues:
1. claimant's average weekly wage on January 15, 1996;
2. the extent of disability resulting from claimant's compensable injury on January 15, 1996;
3. the employer and carrier's liability for medical services and supplies under Section 71-3-15 and the Medical Fee Schedule; and,
4. whether a 10% penalty should be assessed on
untimely payments compensation pursuant to Section 71-3-37(5).
Claimant is a 23-year-old-resident of Clarksdale, Mississippi. She graduated from high school and attended one semester of college at the University of Arkansas. Claimant left college in November of her first semester because her mother had died and she needed to return home and care for two minor brothers who were living with their stepfather.1 She has no vocational training.
Claimant testified she has worked at least part-time since she was fourteen years old. She initially worked as a clerk for a Tack Shop in exchange for riding lessons. During her last two years of high school, she worked full time at the Tack Shop at the rate of $5.00 an hour. At age eighteen, she secured employment at a sun tan studio cleaning beds and scheduling appointments at the rate of $4.75 an hour. She also performed this job while she was in college.
Claimant testified that she was very outgoing as a teenager. She played softball, rode and showed horses, gave riding lessons, and was a member of the French Club, Band, and yearbook staff. She was also a cheerleader and a member of the homecoming court her senior year. She testified that she liked college, and that her goal was to become a veterinarian. She testified that she had to leave school in November 1995 because her mother had died, and she needed to return home to help raise her fourteen and fifteen-year-old brothers. Her brothers were living with their stepfather who worked out of town during the week.
Because she needed to provide financial support for her younger brothers, she accepted a job with the employer within one month after her mother's death. She was hired by the employer as a valet parking attendant at the base rate of $5.25 per hour. Because her injury occurred during her third week of her employment, she had worked only nine days as a valet parking attendant at the time of injury.2 Approximately five of the nine days were weekday nights and the balance were weekend nights. Claimant testified that, in addition to her base pay, she earned tips totaling $35.00 a day during the week and $60.00 a day during weekends.
Claimant's injury occurred during the early morning hours of January 15, 1996 when she was abducted from the employer's premises by a male casino patron. The patron took claimant to Arkansas where he raped her. Claimant's Exhibit 6 contains investigative reports from the F.B.I., the employer and the Helena, Arkansas Sheriff s Office which detail the circumstances surrounding claimant's injury. The perpetrator was later apprehended by the local police. He was charged and convicted of kidnaping, car jacking, and two counts of rape.
Claimant was treated at the Helena Arkansas Hospital immediately after the injury. The next day she sought treatment from the Clarksdale Mental Health Center on referral from the employer. Claimant testified she only went to the Mental Health Center three times because the counselor to whom she was assigned repeatedly missed appointments. She next saw a licensed professional counselor, Pat Durmon, to whom she had been referred to by her maternal grandmother. While under Durmon's care, claimant returned to work at the casino on or about February 1, 1996. She was assigned to the Accounting Office where she worked as a clerk at the rate of $7.00 an hour. Claimant testified she was able to work only a few weeks because she was confused and scared. She testified she had never had problems with people, but she began missing a lot of work because there were days she did not want to get out of bed: "I just wanted to go to sleep and not wake up." Pat Durnion finally referred her for treatment to the Methodist Hospital of Memphis. She last worked for the employer on April 4, 1996, the same day that she was admitted to the Methodist Hospital of Memphis. She remained hospitalized for severe depression and post traumatic stress syndrome until April 17, 1996.
Unfortunately, claimant did not have a good experience at Methodist Hospital of Memphis. During her stay, an African-American male was moved to the room across the hall from her hospital room, and she perceived that he "watched every move that I made." Claimant reported her fears to the nurses and to the doctor. She called home and begged her relatives to take her home. She also testified that the clinical psychologist who treated her at the hospital was "a hard man" who "told me how to feel."
After claimant's discharge from Methodist Hospital of Memphis on April 17, 1996, she did not see another mental health provider until October 1998 when she came under the care of psychologist Dr. L. D. Hutt. Claimant testified she could not afford treatment during the interim because she did not have insurance or any other source of income. She also testified that, between April 1996 and October 1998, her mental condition did not improve. She did attempt to secure legal representation, but "nobody wanted to take my case." The assistant district attorney in Oxford finally referred her to Kent Smith in Oxford. Smith represented her for approximately eight months before he referred her to Andy Howorth due to a conflict of interest. Claimant testified that Howorth filed a motion for medical treatment, and that he ultimately consulted her current attorney regarding her case. Claimant testified that it was during Howorth's period of representation that she came under the care of Dr. L. D. Hutt.
Claimant testified that she has been afraid to leave home without either her grandmother or her husband since the injury. Claimant met her husband at a child's birthday party which she attended with her family in 1998. She testified that she did not date anyone other than her husband, Paul Blair, after January 15, 1996. Her dates with Blair consisted of visits in her grandmother's home. She also visited his parents in their home. Once they went to a movie theater in Memphis, but the experience was so upsetting that they have not returned to the theater or to Memphis except to see the doctor. She and her husband now have an eighteen-month-old-son. Her husband also has two sons, ages four and five years, by a prior marriage.
Claimant testified that her husband encouraged her to play softball, one of her prior interests, with friends and former teammates during the 2000 summer season. She did not want to play, but her husband thought it would be good for her. She ultimately played a total of five games. She testified the team generally played twice a week. She also testified that her husband, grandparents, and children were always at the field when she played baseball.
Claimant testified that Dr. Hutt is the only doctor who has ever helped her. She described him as her life support system. She also testified that she has trust and confidence in him and that she did not know what she would do if she could not continue to see him.
Claimant testified that although the 1996 W-2 form provided by the employer does not show that she received any tips, the employer merely mailed the W-2 form to her without requesting any information from her to complete the form. Her income level did not require her to file an income tax return in 1996. She also testified that she has not returned to or contacted the casino since April 4, 1996, her last day of work and the first day she was hospitalized at Methodist Hospital of Memphis. She also has not worked or looked for other work since April 4, 1996, except for a short stint as a kitchen helper in her aunt's restaurant which is located in Jonesboro, Arkansas. Claimant testified that she moved to Jonesboro to live with her biological father in March 1998 because she thought that a change of scenery would improve her mental condition. She testified that "everything back home" was a reminder of the casino, and that the reminders caused her to have flashbacks and nightmares. However she worked sporadically in her aunt's restaurant for only one month. She testified that working in the restaurant made her uncomfortable because "everybody's a stranger. Everybody watches you. It got to where I didn't want to leave the house." She also testified that even if she were able to secure other employment, she did not think she would be able to maintain employment because she is terrified of people. She testified she has many fears, and that she does not trust people anywhere.
Claimant testified that, even at home, she only feels safe in the presence of her grandmother or husband. She testified that although she stays at home with her baby during the day, her husband is the manager of a terminal for fertilizer trucks and they live on the premises of his workplace. She also testified that she currently takes 40 mg. of Prozac, but she still does not sleep well. She has nightmares and sleeps better during the day when her husband is at home. She testified she pays for the medication prescribed by Dr. Hutt, and that she is not currently receiving medical or disability benefits from the employer. She does receive supplemental security income, but she has not worked long enough to qualify for disability benefits.
It should be noted that this Administrative Judge observed that claimant was visibly distraught and cried throughout the evidentiary hearing. Several breaks were necessary in order for claimant to compose herself. Although she was not asked to recount any.of the circumstances surrounding her injury (details of the injury were provided strictly by investigative reports marked Exhibit 6), claimant left the witness stand sobbing on several occasions. This Administrative Judge did not perceive claimant's display of emotion to be in any way feigned or exaggerated.
Dorothy Howard, claimant's maternal grandmother, testified that she lives three blocks from claimant's childhood home, and that she saw claimant every day while she was growing up. Howard testified that, before the injury, claimant was very outgoing and had no history of mental problems. She played basketball, made A's and B's, loved horses, and aspired to be a veterinarian. She worked from age fourteen.
In November 1995, claimant's mother died and she withdrew from college to return home and care for her younger brothers. Howard testified that although claimant was grieving her mother's death before her injury, her grief for her mother did not require medication or effect her ability to work. Howard also testified that she and her husband were in California attending a family funeral on the date of injury. She did not learn of claimant's injury until she returned home on January 16, 1996. Howard testified that claimant was so embarrassed by the rape that she initially did not want to see her.
Howard testified that claimant was "very disturbed" after the rape in January, February, and March 1996, and that her condition progressively worsened. Howard called the employer's personnel manager and asked him for help because claimant had no insurance and Howard thought that claimant was having a nervous breakdown. She was referred to the Clarksdale Mental Health Center, but the counselors there were not helpful. Howard next contacted Pat Durmon, a counselor with whom claimant was treated for a short period of time. Claimant tried to return to work in February 1996, but co-workers pried her for details and were sometimes cruel regarding her injury. Claimant's subsequent hospitalization at Methodist Hospital of Memphis in April 1996 was also unsuccessful. Howard testified that claimant was particularly uncomfortable when a young African-American male was transferred to the room across the hall from her hospital room, that claimant's doctor was unsympathetic with her fears, and that claimant was finally discharged because of her she could not overcome her fears.
Howard testified that claimant did not see a mental health provider after she was discharged from Methodist Hospital on April 17, 1996 until October 1998 when she came under the care of Dr. Hutt. Although claimant lived with her during this time, her condition progressively worsened. She had "a lot of fears" and emotional problems, but Howard did not know the appropriate treatment for claimant or how to help her. The family sought assistance from the legal profession, but no one they consulted wanted to take claimant's case. She testified that when claimant finally came under the care of Dr. Hutt in October 1998 (due to the efforts of one of her attorneys), her condition improved.
Howard testified that claimant's husband, Paul Blair, also helped her. Claimant met Paul at a birthday party for a four-year-old which she attended with family members. Claimant did not date anyone except Blair after her injury. Howard testified that claimant and her husband hunt and fish together and they visit family together, but they otherwise do not socialize in public.
Despite some improvement in claimant's condition since the rape, Howard testified that claimant still will not leave her home without her grandmother or her husband. Also, claimant does not sleep well. She is often very tired. She gets upset over little things, and she cannot talk about the rape. Howard characterized claimant's emotionality as demonstrated in the court room as a frequent occurrence. Also, during the period that claimant lived with her from the date of injury until her marriage, claimant had frequent nightmares and flashbacks. She would wake up crying, and Howard would sit with her until she went back to sleep. Howard testified that claimant still gets upset when she hears of anyone who has been a victim of violence. She will not watch the news, and Howard testified that she has to "watch what I say." She testified that if claimant hears disturbing news or experiences some other event that reminds her of the rape, she will go to her bedroom and generally cry herself to sleep.
Howard testified that claimant's greatest fear is being abducted. She is afraid of people in general. Howard also testified that claimant cannot work because she is too afraid of people to work with them. She offered claimant employment with the video store that she manages, but claimant told her that she was not ready. Although claimant did "help out a little bit" at her aunt's restaurant in Jonesboro, Arkansas in 1988, she worked for one month or less. Howard also noted that claimant lived with her biological father during this time.
The parties stipulated that, if called to testify as a witness, claimant's husband, Paul Blair, would corroborate claimant's testimony and Dorothy Howard's testimony regarding claimant's mental condition.
The deposition of psychologist Dr. L. D. Hutt dated April 3, 2000 indicates that he first saw claimant on October 21, 1998. She had complaints of depression, crying spells, irritability, extreme social fear and withdrawal, sleep disturbances, flashback type nightmares, parasomnias, panicking when she awakened, problems with concentration, and problems with memory. These symptoms developed after she was abducted and raped in January 1996. Dr. Hutt noted that the perpetrator was sentenced to twenty-five years in Mississippi for car jacking and kidnaping. He received a thirty-year sentence in Arkansas for rape. Dr. Hutt diagnosed post-traumatic stress disorder, chronic, and severe depression. Claimant's MMPI revealed no symptom exaggeration, faking or malingering. Her depression and anxiety scales were extremely elevated consistent with post traumatic stress disorder. Dr. Hutt recommended anti-depressants. He noted that as long as claimant remained at home she functioned fairly well, but that she would not leave home without the security force of a family member due to her "aversion to leaving home and her extreme panic and terror, paranoia that she experienced when she has to leave home."
When Dr. Hutt first saw claimant on October 21, 1998, she was pregnant but unmarried. She described the father of her child whom she later married as a supportive and patient person who had "really been pushing the idea of marriage, but she was somewhat reluctant or reticent." Dr. Hutt testified that he attributed claimant's reluctance to the fact that she felt dirty and unclean because of the rape. Dr. Hutt treated claimant for her symptoms, including sleep disturbances which would result in "at best four or five hours of sleep." Dr. Hutt described claimant's sleep as restless "and more or less cat naps" from which she would awaken feeling irritable, tired and lethargic. Claimant described herself as feeling nervous and sad.
Dr. Hutt testified that claimant was "up and down" during the first half of 1999. Sometimes she had a good day but generally she appeared "acutely distressed, tearful, panicky at times: She was almost to the end of her rope." Dr. Hutt noted that, upon receiving interrogatories related to her workers' compensation claim in February 1999, she "felt kinda generally terrorized" by her memories of the event. Dr. Hutt recommended that claimant take Prozac after she had a baby in April 1999, but her pattern of some days appearing better and some days appearing worse continued. Her condition was exacerbated by news of local crimes, such as a couple's abduction from a local casino. He noted that in July 1999 she was experiencing major parasomnias which "are things that we do in our sleep, such as talking, moaning, groaning, thrashing, kicking around ...."
When Dr. Hutt most recently saw claimant on April 1, 2000, she was "pretty much the same." She told Dr. Hutt that her main problem was having fatal thoughts:
When asked whether claimant had reached maximum medical improvement, Dr. Hutt testified as follows:
Q. How long, in your opinion, to a reasonable, psychological probability will it take with continued psychotherapy and medication to get her to maximum psychological improvement?
A. I would say a minimum of three to five years. It may take longer than that, but our headlights don't penetrate too much farther down the road than three to five years.
Dr. Hutt testified that his final diagnosis was post-traumatic stress disorder, chronic, and severe depression. He testified that on a scale of 1 to 10, her depression is "about a 9." He attributed claimant's impairment to her January 1996 abduction and rape. He also testified that although claimant's family of origin was dysfunctional, "anyone, regardless of family background who had gone through what Ms. Kurt went through in January 1996, would probably have had problems as severe as hers." He further testified that claimant's mother's death two months before her rape did not play a significant role in her current condition.
Dr. Hutt concluded that claimant has not been able to work since her injury: "She can't leave home primarily." He explained that anytime she leaves the safety and security of her home, she becomes extremely anxious and paranoid "to the point that she can't function, she becomes terrified .... She thinks people are following her, she thinks someone is going to car jack her, she thinks someone is going to abduct her son, possibly abduct her.... even if someone is with her, and she, for example, goes to a mall or goes to a Wal-Mart or that type of thing, she's hyper vigilant and scanning and she gets very upset especially if she sees a young black male." He testified that if claimant had a job which required her to interact with the public either inside or outside an office setting, she would "decompensate and become essentially nonfimctional."
When asked if claimant would ever be able to return to work, Dr. Hutt responded as follows:
Dr. Webb testified his mental test evaluation on claimant indicated that she was cooperative, alert, tearful, with poor mood and constricted affect. She did have some suicide ideation but no intent or plan. She also had fair concentration and poor sleep. Dr. Webb diagnosed claimant's condition as post traumatic stress disorder. He recommended claimant resume medication and psychotherapy and that she return to work. He stated that returning to work is an integral part of returning patients with PTSD to maximum medical improvement. He predicted that, although claimant was still having difficulty getting on with her life when he saw her almost three years after the date of injury, she would reach maximum medical improvement within six weeks or about January 1, 1999 if she resumed medication and psychotherapy. He also testified that she should reach maximum medical improvement on January 1, 1999 with no permanent impairment, permanent work restrictions, or need for further medication or psychotherapy. When asked if claimant could have worked before he saw her on November 4, 1998, Dr. Webb testified that she could have returned to work soon after her hospitalization in April 1996 if she had continued her medication and psychotherapy: "If she would have kept up with her treatment, I think she could have gone back to work."
On cross-examination, Dr. Webb attributed claimant's
continued difficulty to the fact that she had not been treated since April
1996. He did not know why she discontinued treatment but acknowledged that
patients sometime discontinue treatment because they perceive that their
condition is not improving with the recommended regimen. He also acknowledged
that claimant told him that she still had violent nightmares about every
two weeks. Although he stated on direct examination that he did
not receive a history that claimant had difficulty leaving her house alone,
he acknowledged on cross-examination that he in fact
received a history that she remained hyper vigilant and did not like to
go out alone in public. He testified that although some people never recover
from PTSD, the individuals who do not recover also do not re-enter life
by marrying or having children as claimant has done. He also testified
that Dr. Hutt's records indicate that he is competent and that claimant
should remain under his care. Dr. Webb was not aware that claimant and
her husband had been counseled by Dr. Hutt for marital problems relating
to her injury.
1. Claimant's average weekly wage on January 15,1996 was $425.00. Claimant undisputed testimony establishes that she made $5.25 an hour, and that, in addition to her base pay, she and other valets earned tips totaling $35.00 a night during the week and $55.00-$60.00 a night on the weekends. The Form B-3 shows she worked forty hours a week. Her undisputed testimony also shows that she did not work on Mondays and Tuesdays, and that she worked five nights a week: three weekday nights and two weekend nights. Claimant therefore earned $210.00 a week base pay plus $105.00 in tips for three weekday nights plus $110.00 in tips for two weekend nights.
2. Claimant has a permanent medical impairment attributable to the work-connected injury on January 15, 1996. Claimant's primary treating psychologist, Dr. L. D. Hutt, testified that claimant has PTSD and severe, chronic depression, that she will continue to require medication and psychotherapy on a regular basis for an indefinite period, and that she will not be able to return to work in the foreseeable future. Dr. Mark Webb, the employer's medical examiner who saw claimant once on November 4, 1998, testified that claimant was not able to work before November 4, 1998 because she had discontinued treatment in April 1996. However he testified that, having resumed treatment, she could return to work as of November 4, 1998. He also testified that she should reach maximum medical improvement with no permanent medical impairnient or work restrictions or need for further medication or therapy within six weeks after his November 4, 1998 evaluation.
In evaluating the medical evidence of the record, this Administrative Judge credits the opinion of Dr. Hutt over that of Dr. Webb, as Dr. Webb saw claimant for one hour and fifteen minutes on November 4, 1998, and Dr. Hutt saw claimant regularly on many occasions from October 1998 through April 2000. Also, although Dr. Webb predicted that claimant should reach maximum medical improvement with no permanent impairment, pennanent work restrictions or need for further medication or therapy by January 1, 1999, his prediction, unfortunately, has not occurred even to date.
3. Claimant's permanent medical impairment resulted in a loss of wage-earning capacity. Claimant returned to work for the employer after her injury on January 15, 1996, but she could not perform even in a clerical position because of her impairment. In fact, she was admitted for inpatient treatment at Methodist Hospital of Memphis on April 4, 1996, the same day that she last worked for the employer. She did not seek further treatment after her discharge from Methodist Hospital because she felt that her mental health providers were not helpful. In 1998, she worked sporadically for one month at her aunt's restaurant while living with her father in Jonesboro, Arkansas. However claimant could not work even in a family business because of her impairment.
Although claimant's condition has improved under the care of Dr. Hutt, he testified that she would not reach maximum medical improvement for a minimum of three to five years, and that she could not return to work in the foreseeable future. He specifically testified that when he last saw her on April 1, 2000, she continued to be plagued by fatal thoughts of being abducted or car jacked. He also testified that she would decompensate and become essentially nonfunctional if she resumed employment now.
Due to the nature and severity of claimant's impairment almost five years post injury as evidenced by the competent medical evidence and credible lay testimony, Dr. Hutt's testimony that claimant cannot return to work for the foreseeable future because of her mental impairment, and claimant's unsuccessful attempt to return to work for the employer or maintain other, regular employment, among other industrially related factors such as her age, education, work history and geographic location, this Administrative Judge finds that claimant is permanently totally disabled because of her injury.
In so holding, this Administrative Judge notes that because a given disability will resolve within a fair period of time does not rule out a finding of permanent disability "if the time for elimination of the disability is indefinite and not merely temporary when reasonably considered." V. Dunn, Mississippi Workers' Compensation (3rd ed. 1982).
4. Claimant is entitled to permanent total disability benefits at the rate of $264.55 per week for 450 weeks beginning January 15, 1996, with proper credit for compensation paid by the employer during this period.
5. Claimant is entitled to all medical services and supplies required by the nature of her injury and the process of recovery as provided in Section 71-3-15 and the Medical Fee Schedule.
6. Claimant is entitled to a 10% penalty on any untimely paid installments of compensation pursuant to 71-3-37(5).
IT IS THEREFORE ORDERED that employer pay compensation benefits to claimant as follows:
1. permanent total disability benefits at the rate of $264.55 per week for 450 weeks beginning January 15, 1996, with proper credit for compensation paid by the employer during this period;
2. all medical services and supplies required by the nature of her injury and the process of her recovery as provided in Section 71-3-15 and the Medical Fee Schedule; and
3. a 10% penalty on all untimely paid installments of compensation pursuant to 71-3-37(5).
SO ORDERED this the 4th day of October, 2000.
DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary
___________________________
1. The evidence indicates that claimant withdrew from college in November 1995 due to her mother's death at age 35 from complications following surgery the year before.
2. Claimant's first three days of work were spend in orientation.