MWCC NO. 96-09498-G-3039

JANICE KIRK                                                                                                                                              CLAIMANT

VS.

K-MART                                                                                                                                                        EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT:
John Hunter Stevens, Esquire, Jackson, MS

REPRESENTING EMPLOYER:
H. Byron Carter, III, Esquire, Jackson, MS

This matter was heard by the Commission on August 6, 2001 pursuant to the Employers Petition for Review. The Employer is seeking to overturn an Opinion of the Administrative Judge issued February 23, 2001 which awarded the Claimant permanent total disability benefits for a psychological injury.

The parties have agreed that Janice Kirk sustained a compensable physical injury on June 17, 1996 when she fell from a ladder, and that her average weekly wage at that time was $484.00. Mrs. Kirk was paid temporary disability benefits for this injury in the total amount of $688.58 for the periods June 18, 1996 to June 23, 1996 and June 26, 1996 to July 7, 1996. There is insufficient proof as to whether Mrs. Kirk incurred any additional periods of temporary disability from this physical injury, and there is no proof that Mrs. Kirk sustained any permanent disability as a result of this physical injury. There also is no issue raised as to the medical treatment to which Mrs. Kirk is entitled because of this injury.

The focus, instead, is on the question of whether Mrs. Kirk also sustained a compensable psychological injury while under the employ of K-Mart. Mrs. Kirk testified that she was first employed by K-Mart on April 29, 1976. Beginning in 1991 she helped open a K-Mart store in Vicksburg and commuted from her home in Yazoo County for eight weeks, working from 7:00 in the morning until late in the evening. She was an office manager and this assignment resulted in a significant increase in her responsibilities and working hours. On her fortieth birthday in 1991, for example, she did not get home from work until 11:00 p.m. and missed a birthday party in her honor as a result. It was at this time that Mrs. Kirk first began to experience bad headaches, and thereafter she sought medical treatment for this problem.

Sometime in 1994 Mrs. Kirk oversaw the closing of the old K-Mart store in Yazoo City and the simultaneous opening of the new store in Yazoo City. She described these experiences as stressful. Mrs. Kirk states that she often put in 80 to 90 hours per week during the transition from the old K-Mart store in Yazoo City to the new one. She explained that her job at the time had been that of office manager, the person responsible for keeping track of invoices and the like. However, once the new store started opening in Yazoo City, the personnel manager at the time was forced to take medical leave. This person eventually retired and Mrs. Kirk had to assume these additional duties while the personnel manager was on medical leave. Mrs. Kirk explained that she was under tremendous stress trying to keep up with her duties as office manager in addition to doing hiring for the new store and doing payroll for both the old store and the new store.

During this time Mrs. Kirk continued to experience bad headaches and crying spells. She attributed these symptoms to the helplessness she felt after being overwhelmed by the many different responsibilities she had to assume during this transition for K-Mart. In February 1996 she took several weeks of medical leave, but was able to return to work. In June 1996, Mrs. Kirk fell from a ladder at work and hit her head, and she claims her headaches grew noticeably worse after this fall. As it became more difficult to keep up with her many job responsibilities, Mrs. Kirk stated the stress she felt got worse until she was finally admitted to Charter Hospital in November 1996.

Mrs. Kirk was treated for psychological problems at Charter Hospital until April 1997. She attempted without success to return to work for K-Mart after her treatment, and she has not worked anywhere else since. She denied ever having experienced headaches or psychological problems in the past, and testified that she loved her job at K-Mart even though it consumed her life. Mrs. Kirk still requires regular psychiatric treatment and is not sure if she could handle another job.

Marcia Henry, a long time employee of K-Mart, testified that she worked with Mrs. Kirk at the old K-Mart store in Yazoo City as well as at the new store. In June 1996 she was promoted to Human Resources Manager at the new K-Mart store. Before that she worked as a merchandiser. Ms. Henry stated that she and Mrs. Kirk were the first two employees transferred to the new store in late January or early February 1994.

Ms. Henry testified that she first became aware of Mrs. Kirk's headaches after they both had transferred to the new K-Mart store in early 1994. She stated that Mrs. Kirk would come in some days and have headaches and would leave, or would become upset. Ms. Henry described Mrs. Kirk's bout with headaches as on and off. To her knowledge, Mrs. Kirk never claimed her headaches grew worse or were in any way related to the fall from the ladder.

Ms. Henry estimated that she and Mrs. Kirk worked an average of 50 to 60 hours per week during the early stages of the new store opening, and up to 70 hours per week as the time for the new store grand opening approached. She stated, however, that this was normal for all of the people involved in opening the new store. After the new store officially opened, Mrs. Kirk worked approximately 50 to 60 hours per week, according to Mrs. Henry. Ms. Henry also testified this was normal considering the transition from a smaller store to a store of much higher volume.

Ms. Henry confirmed that Ms. Kirk assumed some additional personnel duties at the old store starting about October 1993 when the former personnel manager retired. She also stated, though, that K-Mart brought in other personnel managers to assist once the transition from the old store to the new store began. In her words, "there were others there to assist and help and did do so." Ms. Henry herself assumed the personnel manager duties in full after the new store officially opened in April 1994.

Mrs. Kirk's husband also testified at the hearing. Mr. Kirk stated that his first recollection of Mrs. Kirk's headaches was around her fortieth birthday in 1991. At the time she was working at the K-Mart store in Vicksburg. He stated this particular day was typical of Mrs. Kirk's work schedule while assigned to the Vicksburg store. Mr. Kirk had planned a birthday party for his wife, complete with balloons and guests, but she did not arrive home from work until 11:00 p.m. Needless to say, the party was cancelled and Mrs. Kirk went straight to bed complaining of a headache. Mr. Kirk did not remember how many hours per week his wife worked at the Vicksburg store but he did say it was a lot of hours.

Mr. Kirk testified that his wife's headaches continued, and that her work load increased significantly during K-Mart's transition from an old store to a new store in a Yazoo City. She constantly complained of headaches and having trouble dealing with all of the responsibilities of her job. Mr. Kirk denied any other life experiences which may have contributed to his wife's nervous break down. All the signs, in his view, pointed to her stressful job at K-Mart as the source of her problems.

There are many medical records in evidence, and on the whole, they overwhelmingly establish that Mrs. Kirk does indeed have a mental illness which has been identified as major depression. K-Mart, in fact, does not deny that Mrs. Kirk has a bona fide mental illness. The issues here, instead, focus on causation and compensability.

Dr. Faeza Jones, her treating physician at the Warren-Yazoo Mental Health Service, and her therapist, Angela Street, both were of the opinion that Mrs. Kirk's major depression was caused or contributed to by her stressful work at K-Mart. In their view, which is uncontradicted, "the excessive stress related to [her work] appeared to have triggered a pattern of debilitating headaches" which in mm triggered Mrs. Kirk's mental illness. Both also were of the opinion that the physical injury she suffered in June 1996 "may have also been a contributing cause in exacerbating the pattern of headaches." Dr. Jones and Ms. Street felt that Mrs. Kirk was totally disabled from work.

Predictably, K-Mart disputes that Mrs. Kirk's mental illness is causally related to her work. They argue that no extraordinary employment related events have been identified, and they also point to references throughout Mrs. Kirk's medical records that there were many other stressors in her personal life which have contributed to her continuing mental illness.¹

To recover benefits for her allegedly disabling mental injury, Mrs. Kirk must prove by clear and convincing evidence that she suffers from a disabling mental injury which was either caused, contributed to or aggravated by something other than the ordinary incidents of her employment, or that her disabling mental injury was caused, contributed to or aggravated by a work related physical injury. Miss. Code Ann. §71-3-3(b) (Rev. 2000); Bates v. Countrvbrook Living Center, 609 So.2d 1247, 1248 (Miss. 1992); Fought v. Stuart C. Irbv Co., 523 So.2d 314, 317 (Miss. 1988); Mvles v. Rockwell Intern., 445 So.2d 528, 537 (Miss. 1983).²

The questions in this case are whether Mrs. Kirk suffers from a disabling mental injury that was sufficiently aggravated by the physical injury she suffered at work, or whether her disabling mental injury stems from working conditions which we may reasonably characterize as something other than the ordinary incidents of employment so as to render her mental injury compensable even in the absence of the aforementioned physical trauma. In end, we answer both questions in the negative.

As for the possible causal connection between Mrs. Kirk's fall from a ladder in June 1996 and her mental illness, Dr. Jones and Ms. Street were of the opinion that this fall "may" have aggravated the pattern of headaches from which Mrs. Kirk suffered. Based on their earlier opinion that these headaches contributed to the development of depression, we can infer that this fall "may" have aggravated to some extent Mrs. Kirk's mental illness. No other medical evidence has been offered which addresses the possible connection between these events.

In considering this particular question, it is critical to note that Dr. Jones and Ms. Street were of the opinion only that this fall "may" have aggravated Mrs. Kirk's headaches. This opinion does not sound to us in terms of reasonable and dependable medical probabilities, but merely in terms of possibility. The opposite conclusion appears just as legitimate, i.e. the fall from the ladder may not have aggravated Mrs. Kirk's headaches.

It is well recognized that proof of causal connection must rise above mere possibility. Especially is this so in cases of this nature which require expert medical opinion to help establish causation. If this medical opinion is not based on dependable medical probability, then we are left to engage in speculation as whether Mrs. Kirk's fall from the ladder bore any causal relationship to her mental illness. Dunn, Mississippi Workers' Compensation §273 (3d ed. 1982). Admittedly, both Mr. and Mrs. Kirk thought her headaches became worse after and as a result of this fall, but it appears to us that a more definite medical opinion is required to substantiate such a claim. Under the circumstances, and given the nature of the only expert opinion offered, there is not clear evidence that Mrs. Kirk's mental illness was either caused, contributed to or aggravated by the physical injury she sustained at work on June 17, 1996.

This leaves us to decide whether Mrs. Kirk has presented clear and convincing evidence that her mental illness was caused, contributed to or aggravated by something other than the ordinary incidents of her employment. The evidence establishes that Mrs. Kirk was an extremely dedicated employee for K-Mart, and that she worked her way up to the position of office manager, a demanding position no doubt. The evidence does not convince us, however, that Mrs. Kirk consistently worked 80 to 90 hours per week as she claimed, although the proof is such that we can find she routinely worked 50 or 60 hours per week. The proof also establishes that Mrs. Kirk performed additional duties during the period when K-Mart was in transition from its old store in Yazoo City to its new store; but, she was not without help during this period. Finally, the credible testimony of her co-worker establishes that the requirements of Mrs. Kirk's job, at least during her tenure with the K-Mart stores in Yazoo City, were not unusual given her managerial role, and that during the critical transition period to the new store in Yazoo City, the conditions of Mrs. Kirk's employment were not unlike others involved in the transition. The question ultimately is whether Mrs. Kirk's struggle with the demands of her job and her consequent development of a major depressive disorder demand that we award her compensation benefits under the Workers' Compensation Law.

Very recently, the Mississippi Court of Appeals decided a similar case. In Smith v. City of Jackson, 2000-WC-00788-COA (August 14, 2001) an employee of the City of Jackson Police Department developed a mental injury which the Commission found was due to stressful incidents of his employment. In particular, the claimant presented credible proof that he was left to work alone for several weeks in the evidence department and was overwhelmed by the requirements of the job. In discussing his claim, the Court stated:

While Smith may have comfortably passed the prong requiring him to show an injury and a causal connection between that injury and his employment, we agree with the Commission that he has failed to prove that the mental injury was caused by some unusual or untoward event. As noted by the Commission, people work in stressful situations al the time. Employees get sick, experience hardships, get married, have a child, retire or even die. These tragedies or exciting events do not elude the everyday worker. As such, employees sometimes have to take time off work or quit work completely. In this case, one of Smith's co-workers retired. Later, another of Smith's co-workers had to be on medical leave for surgery. These were events that could not be helped.

Smith was left alone in the evidence division to do his daily job. No one is arguing with Smith that he had a difficult time doing all of the tasks required of him or that he felt serious stress because he was alone. The Commission, however, listened to all of the testimony and evidence and found that there was nothing unusual about Smith's situation. We agree. Businesses become shorthanded from time to time. While we cannot speculate as to why no other employees were inimediately hired to help Smith, we must look to the record and evaluate whether the Commission's conclusions were supported by the evidence. We find that they were. *****

It is clear from the record that doing the job alone was difficult for Smith. We will even agree that Smith's mental injuries stemmed from this stressful situation. But, will we go so far as to say that his circumstances were extraordinarily unusual? We cannot.

Like in Smith, Mrs. Kirk had a demanding job no doubt which caused her a great deal of stress and which no doubt contributed to or aggravated her mental illness. Managerial work is demanding work, and we suspect this is especially true in the retail sector. Nonetheless, there is not any clear and convincing evidence which establishes that Mrs. Kirk was subjected or exposed to extraordinary or unusual employment conditions. There simply are not any employment related events or incidents involving Mrs. Kirk that we may fairly label as extraordinary or unusual given the nature of her position with K-Mart. As in Fisher v. Empire Gas Co., 770 So.2d 1002, 1006 (Miss.Ct.App. 2000), this case falls "short of the kind of prolonged and excessive working hours" or extraordinary working conditions that would compel an award of workers' compensation benefits for a resulting mental injury.

In the end, we are moved by Mrs. Kirk's tragic struggle with mental illness. However, guided by the applicable law and the evidence presented, we have no choice but to conclude that there is no clear evidence of a causal connection between Mrs. Kirk's mental illness and her fall from a ladder at K-Mart, and there is no clear and convincing evidence that the conditions and incidents of her employment were anything but ordinary. We therefore affirm the Administrative Judge's Order of February 23, 2001 as it pertains to Mrs. Kirk's physical injury, but we reverse and set aside that part of the Order which finds Mrs. Kirk is entitled to permanent total disability benefits and medical treatment at the Employer's expense for her mental injury. Her claim for benefits based on this mental injury is dismissed and denied accordingly.
SO ORDERED this the 20th day of August, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

BEN BARRETT SMITH, CHAIRMAN
BARNEY J. SCHOBY, COMMISSIONER
LYDIA QUARLES, COMMISSIONER

ATTEST:
Jo Ann McDonald, Commission Secretary

MWCC NO. 96-09498-G-3039

JANICE KIRK                                                                                                                                               CLAIMANT

VS.

K-MART                                                                                                                                                        EMPLOYER
(SELF-INSURED)

REPRESENTING THE CLAIMANT:
John Hunter Stevens, Esquire, Jackson, MS

REPRESENTING THE DEFENDANT:
H. Byron Carter, III, Esquire, Jackson, MS

Janice Kirk alleged that she sustained a work-related psychological injury that was aggravated by a work-related physical injury on June 17, 1996. Because the Employer admitted the physical injury but denied that Mrs. Kirk's psychological condition was work-related, a hearing was held at the Mississippi Workers Compensation Commission Building. Considering all the facts, the Administrative Judge finds that Mrs. Kirk is entitled to temporary disability benefits for her physical injury and permanent total disability benefits for her separate psychological injury.

At the hearing the parties stipulated to these facts:

1. Mrs. Kirk sustained the work-related physical injury alleged in the Petition to Controvert;

2. At the time of that injury Mrs. Kirk's average weekly wage was $484.00; and,

3. For that injury K-Mart paid temporary disability benefits of $688.58.

The parties identified these issues:
 

1.Whether Mrs. Kirk sustained the work-related psychological injury alleged in the Petition to Controvert;

2. The existence and extent of temporary disability attributable to the injuries; The existence and extent of permanent disability attributable to the injuries;

4. The date on which Mrs. Kirk attained maximum medical improvement; and,

5. Whether the Statute of Limitations bars the claim for the psychological injury.

1.  Douglas Kirk

According to his testimony at the hearing, Douglas Kirk married the claimant in 1973.  Mrs. Kirk graduated from Benton High School, and on April 29, 1976, she started working for K-Mart. She began as a cashier and worked her way up to the position of office lead manager.

Mrs. Kirk was a dedicated employee and worked long hours, but in 1991 while she was working at the Vicksburg K-Mart, her work hours and responsibilities greatly increased. She worked so much that she missed her fortieth birthday party in 1991 because she did not get home until 11:00 p.m. Because of a headache, she went straight to bed. That date was the first time that Mr. Kirk noticed his wife's headaches.

In 1991 Mrs. Kirk began seeing doctors for her problems. In 1994 a new K-Mart opened in Ya.zoo City, and Mrs. Kirk worked there as the office lead manager and as the personnel director. The headaches continued.
 
In August 1995 Mrs. Kirk's car stopped and would not start again. She panicked. ran to a house, and called Mr. Kirk.

In February 1996 Mrs. Kirk took four to six weeks of medical leave because of her headaches. Then she went back to work.

In June 1996 Mrs. Kirk fell off a ladder at work and hit her head on a desk. After that fall, Mrs. Kirk's headaches worsened.

Sometime later Mr. Kirk found Mrs. Kirk weeping uncontrollably, shaking all over, and biting on a rag. Mrs. Kirk then took medical leave and was treated at Charter Hospital from November 1996 until April 1997.

After she was released from Charter, Mrs. Kirk attempted without success to return to work at K-Mart, but she seemed to believe that her co-workers "were trying to make it harder on her." She had not worked since, and the headaches continued.

In 1997 Dr. Jones concluded that Mrs. Kirk's psychological problems were related to her work at K-Mart. Mr. Kirk was not aware of anything else that could have caused Mrs. Kirk's difficulties.

At the time of the hearing, Mrs. Kirk was some better, but she was not capable of doing any work. She could not sleep unless she took Prozac. She still had problems with the hip that she injured in the fall, and she had gained eighty pounds. She avoided K-Mart because going in the store made her so emotional.

According to his cross-examination testimony, Mr. Kirk asked Mrs. Kirk to quit her job and stay home, but she refused. He never pushed her to do so, because he wanted her to be happy.

At one time Mrs. Kirk was taking so much medication that much of what she told the doctors wasn't true.

A tractor ran over Mrs. Kirk's head when she was four years old. Mr. Kirk was her second husband. She married her first husband twice. Mr. Kirk adopted the daughter from Mrs. Kirk's first marriage, and that daughter also used to work at K-Mart. Mrs. Kirk sometimes kept her daughter's two sons (seven and eight years old, respectively). Mrs. Kirk tried to go to the gym every day to exercise but it was difficult for her to do so because of her hip.

In addition to working at K-Mart, Mrs. Kirk had had other stressful events in her life. Mr. Kirk's mother died about a year and a half before the hearing. His father was in bad health. Mrs. Kirk sometimes sat with her mother who had lost a leg.

In 1994 Mrs. Kirk was the co-employee of the year. Mr. Kirk filmed the ceremony when Mrs. Kirk received her twenty-year pin, but Mrs. Kirk could not remember that event.

From May 1997 until the hearing, Mrs. Kirk did not attempt to return to her employment at K-Mart, and she did not look for another job. She could not work because of her hip and her psychological condition. Mrs. Kirk, however, had started driving again.

Mrs. Kirk applied for and was receiving Social Security disability benefits.

On April 29, 1976, Janice Kirk began working at K-Mart and continued working there until about three years before the hearing — it was hard for her to remember. She was the office manager and also served as the personnel director while that employee was on sick leave. When she became forty, the stress caused her to start having headaches.

When the new store opened in Yazoo City, she often worked eighty to ninety hours a week. When the personnel manager quit, Mrs. Kirk also performed the duties of that position. For example, she hired all of the new employees for the new store in Yazoo City. She could not keep up with the work, and she cried all the time. By the time she went to Charter, "I just felt that I could not get it all done."

When she fell off the ladder, she hit her hip and head on the corner of a table. After that accident, the stress became worse because she simply could not perform all of her work.

If she could return to her job now, she would because "K-Mart was my life." After the accident no one from K-Mart ever called to see how she was doing — at least she could not remember anyone doing so.

Mrs. Kirk's psychological condition was better now than in 1997. She went to her psychiatrist and therapist once a month and took her medicine. The headaches were better, but because of all of the medicine she had taken, she could not remember everything that she had told the doctors.

When she was four, her sister ran over her head with a tractor.

According to her cross-examination testimony, the new K-Mart in Yazoo City opened on April 14, 1994, but the old store remained open for some time after that date. Mrs. Kirk worked at both of those stores for several months. She supervised the transfer of the merchandise from the old store to the new one.

Mrs. Kirk's last day at the Vicksburg K-Mart was her fortieth birthday (August 1, 1991), when the headaches began. She stayed late to do the month-end reports (Mrs. Kirk was the only employee who knew how to prepare those reports), and got home at 11:00 p.m.

In August 1995 Mrs. Kirk's car stopped on Highway 49. She was frightened and ran half a mile to get help, but her headaches began earlier when she turned forty.

When the new K-Mart was opening in Yazoo City, Mrs. Kirk told a coworker, Marcia Henry. about her headaches.

Mrs. Kirk thought that a coworker must have talked with the doctor in the emergency room after her fall, because the history was inaccurate. For example, contrary to the history, she lost consciousness.

Mrs. Kirk denied that her marriage was a major source of stress in her life. Her husband had never asked her to quit work and stay home.

Mrs. Kirk's daughter worked at K-Mart for seven or eight years but left when she got ajob at a bank. The daughter's employment at K-Mart was her first job, but she could not obtain a promotion because Mrs. Kirk was the office manager and personnel director at the same store. Mrs. Kirk was sad when her daughter left K-Mart.

Although Mrs. Kirk checked on her mother from time to time, she did not take care of her mother. Because she was taking so much medication, Mrs. Kirk did not remember the death of her mother-in-law. Mrs. Kirk could go to the gym only once or twice a week because of her hip. She attempted suicide when she was thirteen.

Marcia Henry¹ had worked at K-Mart for nineteen years. In April 1996 she became the personnel director for the store in Yazoo City, but at the time of the hearing, Ms. Henry was the clothes manager.

Ms. Henry worked with Mrs. Kirk while opening the new store. They both worked very long hours during that time, as much as ninety hours a week, but after the opening of the new store, Mrs. Kirk returned to working fifty to sixty hours a week. During that period - after the new store opened - Ms. Henry noticed Mrs. Kirk's headaches.

In October 1993 the personnel manager took medical leave and then retired. Mrs. Kirk assumed the personnel responsibilities, and she continued performing all of her duties as the lead office manager. Mrs. Kirk could not be given the position of personnel director because her daughter worked at the same store. Ms. Henry eventually got the personnel job.

Mrs. Kirk took medical leave in early 1996 and fell in June 1996. Mrs. Kirk's crying began after the new store opened.

According to Ms. Henry's cross-examination testimony, Mrs. Kirk was a very dedicated employee. At some point Mrs. Kirk came to Ms. Henry in tears and complained about her headaches.

Dr. Adele A. Thiel testified through her medical records that she first saw Mrs. Kirk on November 14, 1995. Mrs. Kirk complained that she had suffered from severe headaches for about four months. After a battery of tests produced normal results, Dr. Thiel concluded on February 7, 1996, that Mrs. Kirk's headaches probably had a psychological origin.

On September 26, 1995, Mrs. Kirk came to the emergency room complaining of a sore throat and hyperventilation. She was diagnosed as suffering from pharyngitis and anxiety syndrome. She returned on December 12, 1995, but the records do not reveal the reason.

On February 17, 1996, Mrs. Kirk reported that she had experienced headaches for seven months. By April 2, 1996, Dr. Marion Sigrest stated that Mrs. Kirk might have glassopharugal neuralgia.

On June 17, 1996, the history stated that Mrs. Kirk had fallen six or seven feet from a ladder at work, struck her neck, and landed on her right side. She complained of pain in her right hip, neck, and head. The examination produced normal results, so Mrs. Kirk was given pain medication and taken off work. On June 20, 1996, she was released to return to work.

On June 27, 1996, Mrs. Kirk complained of pain in the right side of her head and neck. The neurological examination was normal.

On December 18, 1996, Mr. Kirk brought Mrs. Kirk to the hospital and told Dr. Sigrest that Mrs. Kirk "refused to speak, eat, or interact socially...."² Dr. Sigrest found that Mrs. Kirk took "Neurotin, Effexor, and Clonipin in high dosages."³ After arriving at the hospital, Mr. Kirk refused to take those drugs, and her condition quickly improved. Dr. Sigrest reduced the dosages, and by December 20, 1996, Mrs. Kirk had "returned to her normal state."⁴  Dr. Sigrest diagnosed her condition as a schizophrenic reaction versus an hysterical reaction.

On April 7, 1998, Mrs. Kirk saw Dr. R. M. Foose for a referral to an orthopedist for further treatment of her lower back and left knee. (She still complained of headaches.) On June 10, 1998, Mrs. Kirk was diagnosed as suffering from depression.

6. Nordal Clinic Records

Mrs. Kirk first went to the Nordal Clinic on February 22, 1996, and reported that she had had headaches for seven months and that her "job [was the] ... current source of stress."⁵ She returned to the clinic four times and learned relaxation techniques to help cope with the pain. Her last visit was on April 17, 1996.

7. Charter Hospital Records

Mrs. Kirk was admitted to Charter Hospital on October 16, 1996, because she threatened to commit suicide to stop her headaches. Mrs. Kirk reported that when her car had broken down, in August 1995, she had run along the highway and felt something pop in her head. Since then she had had a continuous headache.

While at Charter Mrs. Kirk complained about not being able to keep up with job duties, about her relationship with her husband, and about her weight gain. Mrs. Kirk was discharged on November 27, 1996, with a final diagnosis of major depressive disorder, single episode; somatoform pain disorder; obsessive-compulsive personality; and headaches of unknown etiology. Except for connecting Mrs. Kirk's repressed anger to her depression, Dr. Debra Rogers and the other health care professionals treating Mrs. Kirk did not identify a cause for her psychological condition.

According to Dr. Ronald B. Williams' records, Dr. Rogers referred Mrs. Kirk to Dr. Williams, who treated Mrs. Kirk from October 28. 1996. through at least July 28, 1997. During her first visit Mrs. Kirk stated that she had experienced intermittent headaches since a tractor had run over her head when she was four; but, the present type of headaches had begun in August 1995 when her car stopped on the road and she had an emotional breakdown.

Dr. Williams treated Mrs. Kirk's headaches with myofascial trigger point injections and bilateral occipital nerve blocks. That treatment produced excellent results - at least for a while - and by December 12, 1996, Mrs. Kirk's headaches stopped. Later on January 24, 1997, Dr. Williams told Mrs. Kirk to workout three to five times a week to reduce her pain and depression.

OnApril 14, 1997, Mrs. Kirkreportedthatshehadreturnedto workonApril 1, 1997, and that her headaches had returned as well. Mrs. Kirk's job-related stress continued, and on April 21, 1997, she and Dr. Williams "discussed [her] job status as a contributing cause to her HA [i.e., headaches]."⁶ Then on April 28, 1997, Dr. Williams noted that "her job seems to be her main source of stress/frustration."⁷

On May 14, 1997, Dr. Williams diagnosed Mrs. Kirk'sconditionas bilateral occipital nerve neuralgic.

On May 19, 1997, Dr. Williams and Mrs. Kirk discussed herjob stress. On May 22, 1997, Dr. Williams noted that Mrs. Kirk was depressed and that she was experiencing significant stress from worrying about getting behind at work.

According to his records, Dr. V. Faeza Jones began treating Mrs. Kirk on May 23, 1997, and saw her about twice a month through March 20, 2000. During her first visit Mrs. Kirk was depressed, had suicidal thoughts, and was experiencing daily debilitating headaches. Mrs. Kirk reported that the headaches started three years earlier when she had held two positions at two different K-Marts and had worked extremely long hours — as much as ninety-two hours during one week. On May 26, 1998, on a form submitted to the Employer/Carrier, Dr. Jones that Mrs. Kirk's depression was caused by her headaches that had started when she had worked long hours while opening a new K-Mart.

Later on April 26, 1999, Mrs. Kirk stated that she had attempted to commit suicide at the age of fifteen. Also Mrs. Kirk reported having intermittent auditory hallucinations. On June 30, 1999, Dr. Jones opined:

It became very clear working with Mrs. Kirk that these symptoms first developed when she was under stress at work while working as an office manager at K-Mart. Apparently, there was a period of time where K-Mart was trying to open a new store and Mrs. Kirk was working 90 hours a week many times. The excessive stress related to this appeared to have triggered a pattern of debilitating headaches. Another factor that may have also been a contributing issue in exacerbating the pattern of headaches was a fall that occurred June 1997 [This fall actually occurred in June 1996.] while she was employed at K-Mart. Although Mrs. Kirk's work load eventually decreased back to her normal forty hours, her debilitating headaches continued and her ability to handle normal daily stressors remained severely impaired. Over a period of time, the unceasing headaches, inability to work and inability to handle normal daily stressors triggered a severe depression combined with frequent suicide ideation.⁸

Dr. Jones added that Mrs. Kirk was totally disabled and that her prognosis was fair to poor. The records indicate that Mrs. Kirk's condition improved little, if any, by March 30, 2000.

Upon consideration of the pleadings, pre-trial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearing, and applicable law, the Administrative Judge finds these facts:

1. A tractor ran over Mrs. Kirk's head when she was four, and she attempted to commit suicide when she was fifteen. In 1976 she went to work for K-Mart and eventually became the office manager.

2. In 1991 while working at the Vicksburg K-Mart, Mrs. Kirk's work load dramatically increased. Although the amount that she worked decreased when she first went to the Yazoo City K-Mart, her work load increased again when she was given the duties of personnel manager (without the title) in October 1993, in addition to her responsibilities as the office manager.

3. Mrs. Kirk's work hours increased again, reaching as many as ninety hours a week, while she worked on closing one K-Mart store in Yazoo City and opening another one. After the new store opened on April 14, 1994, Mrs. Kirk continued to work fifty to sixty hours a week.

4. After the new store opened, Ms. Henry, the claimant's co-worker, noticed Mrs. Kirk's headaches. In August 1995, Mrs. Kirk's car quit on the highway and she panicked.

5. On November 14, 1995, Mrs. Kirk went to see Dr. Thiel because of her headaches. On February 1, 1996, Dr. Thiel concluded that the headaches probably had a psychological origin.

6. The parties stipulated that: on June 17, 1996, Mrs. Kirk fell from a ladder at K-Mart and sustained work-related injuries to her head, leg, and hip; on that date Mrs. Kirk's average weekly wage was $484.00; and, Mrs. Kirk received temporary disability benefits of $688.58. No doctor assigned Mrs. Kirk an impairment rating, date of maximum medical improvement, or work restrictions for those injuries, but she was taken off work for a time.

7. On October 16, 1996, Mrs. Kirk was admitted to Charter Hospital because she had threatened to commit suicide to stop the headaches. She was discharged on November 27, 1996, with a final diagnosis of major depression.

8. On December 18, 1996, Mr. Kirk brought Mrs. Kirk to King's Daughters Hospital because she refused to eat or speak. She was discharged on December 20, 1996, with a diagnosis by Dr. Sigrest of schizophrenic reaction versus a hysterical reaction.

9. Mrs. Kirk returned to work on April 1, 1997,⁹ and her headaches returned. Dr. Williams, who treated Mrs. Kirk's headaches, first related the headaches to Mrs. Kirk's job stress on April 21, 1997.

10. Dr. Jones began treating Mrs. Kirk's depression on May 23, 1997. On May 26, 1998, Dr. Jones causally connected the depression with the headaches and the headaches with Mrs. Kirk's job stress.

11. On June 11, 1998, Mrs. Kirk filed her Petition to Controvert, alleging physical and psychological injuries.

1.Physical Injuries

For her stipulated physical injuries, the Administrative Judge finds that Mrs. Kirk is entitled to temporary disability benefits but that the record was unclear as to how much work Mrs. Kirk missed because of her June 17, 1996, physical injuries; therefore, beginning June 17, 1996, and continuing until she returned to work full-time, Mrs. Kirk is entitled to temporary disability benefits for any week in which she actually earned less than her pre injury average weekly wage of $484.00, at the rate of "two-thirds of the difference between [her] pre-injury weekly wage and...[her] earnings for that week." Hendershot v. Weiser Security System. Inc., MWCC No. 97-08017-G-0280, 1999 377899, at 3 (May 25, 1999). Of course, K-Mart will receive credit for the temporary benefits already paid.

Because no doctor assigned Mrs. Kirk an impairment rating, she is not entitled to permanent disability for her physical injuries.

Mrs. Kirk has the burden of proving by clear and convincing evidence a causal connection between her employment and her psychological condition. In addition, if the psychological injury is unaccompanied by physical trauma, Mrs. Kick must prove that the injury was caused by something more than the ordinary incidents of her employment.

Although Mrs. Kirk's headaches may have begun in 1991, the Administrative Judge finds that her headaches intensified and became more continuous because of the stress of working extraordinarily long hours while closing one K-Mart store and opening another in the first part of 1994. At the same time Mrs. Kirk performed not just one, but two jobs - office manager and personnel manager.

The Administrative Judge is not persuaded, however, that Mrs. Kirk's physical injuries on June 17, 1996, aggravated her headaches or psychological condition. Dr. Jones, the only physician to comment on this point, said only that the fall "may ... have ...exacerbat[ed] the pattern of headaches.¹⁰

The Administrative Judge accepts Dr. Jones' opinion that over time Mrs. Kirk's "headaches... triggered severe depression."11 In other words, the Administrative Judge finds that Mrs. Kirk has met her burden of proof.

K-Mart counters, however, that in any event Mrs. Kirk's claim for psychological injuries is barred by the two-year Statute of limitations in Section 71-3-35. K-Mart argues that the headaches began: in 1991 when Mrs. Kirk worked long hours in Vicksburg; in 1994 when she worked long hours in the Yazoo City stores; or, at the latest in August 1995 when Mrs. Kirk's car quit. At any rate, all of these events occurred more than two years before Mrs. Kirk filed her Petition to Controvert on June 11, 1998, and so - contends K-Mart - the psychological claim is barred.

Contrary to the argument of K-Mart, Mrs. Kirk's depression - not her headaches - is her psychological injury. As Dr. Jones pointed out, the work-related headaches over time eventually caused the depression. Although the record does not pinpoint when Mrs. Kirk's depression began, no physician articulated the links among thejob stress, the headaches, and the depression until Dr. Jones did so on May 26, 1998 - less than a month before Mrs. Kirk filed her Petition to Controvert. On the other hand, assuming arnuendo. that K-Mart is correct in contending that Mrs. Kirk's headaches constitute her psychological injury, the Statute of Limitations did not start running until April 21, 1997, when for the first time a physician, Dr. Williams, concluded that Mrs. Kirk's job stress was "a contributing cause" to her headaches.

Considering all of the facts the Administrative Judge finds that Mrs. Kirk's claim for psychological injuries is not time -  barred by Section 71-3-35.

Finally, Dr. Jones opined on June 30, 1999, that Mrs. Kirk was totally disabled.  Based on that opinion and on the Administrative Judge's observation of Mrs. Kirk during the hearing,¹² the Administrative Judge finds that Mrs. Kirk is permanently and totally disabled and thus is entitled to 450 weeks of disability benefits from the time her depression became disabling on October 16, 1996, when she was admitted to Charter.

The only evidence as to Mrs. Kirk's average weekly wage on that date is the $484.00 that the parties stipulated to be her average weekly wage on June 17, 1996. That figure produces a benefit amount of $322.67. That amount, however, must be reduced to the 1996 maximum weekly benefit of $264.55.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer shall pay workers' compensation benefits to the Claimant as follows:
 

1.Temporary disability payments for the Claimant's physical injuries at the appropriate rate from June 17, 1996, until the Claimant returned to work full-time, with the Employer to receive credit for the temporary benefits already paid;

2. Permanent total disability payments for the Claimant's psychological injuries in the amount of $264.55 each week, beginning October 16, 1996, and continuing for 450 weeks; and,

3. Penalties and interest on any due and unpaid compensation benefits.

IT IS FURTHER ORDERED AND ADJUDGED that the Employer shall provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (Rev. 2000), and the Medical Fee Schedule.

SO ORDERED this the 23rd day of February, 2001.

MARK HENRY
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Commission Secretary
 
 

1 K-Mart also questions the timeliness of Mrs. Kirk's claim and argues it is barred by the two year statute of limitations. Miss. Code Ann. §71-3-35(Rev. 2000). Because we find this claim ultimately unsupportable by the facts, we omit any discussion of this issue.

2 In Myles the Court stated the "test of causal connection between a work related accident and a psychoneurosis subsequent to that accident is a test of 'clear evidence."' 445 So.2d at 537. This obviously implies a standard of proof greater than the typical preponderance standard, and we presume it refers to the "clear and convincing" standard of proof.

1 Ms. Henry is not related to the Administrative Judge in this claim.

2 Employer/Carrier's Exhibit 8, King's Daughters Hospital Records, at p. 40.

3 Id.

4 Id.

5 Employer/Carrier's Exhibit 3, Nordal Clinic Records, p. 20.

6 Employer/Carrier's Exhibit 7, Dr. Ronald B. Williams' Records, p. 43.

7 Id., at 42.

8 Claimant's Exhibit 1, Dr. V. Faeza Jones' Medical Records, pp. 46 -47.

9 The record was unclear as to when Mrs. Kirk had ceased work.

10 See footnote 7.

11 Id.

12 For example, throughout the entire hearing, Mrs. Kirk's leg shook continuously and - as far as the Administrative Judge could determine - involuntarily.