Utah Workers Compensation Decisions
1995.
94-0261.
LINDA MASON vs. MANPOWER INC. dba MK INC. and WORKERS COMPENSATION FUND OF UTAH Defendants
THE INDUSTRIAL COMMISSION OF
UTAHLINDA MASON,
Applicant, vs. MANPOWER INC. dba MK, INC. and WORKERS
COMPENSATION FUND OF UTAH, Defendants.
Case No. 94-0261ORDER ON MOTIONS FOR REVIEWManpower Inc. and its workers' compensation insurance carrier,
the Workers Compensation Fund of Utah (referred to jointly as "Manpower"
hereafter), ask The Industrial Commission of Utah to review the Administrative
Law Judge's award of benefits to Linda Mason pursuant to the Utah Workers'
Compensation Act.
Additionally, Ms. Mason asks the Industrial Commission to review
the ALJ's finding that she suffered only an 11% whole person impairment as a
result of her industrial accident.
The Industrial Commission exercises jurisdiction over these
motions for review pursuant to Utah Code Ann. '63-46b-12, Utah Code Ann.
§35-1-82.53, and Utah Admin. Code R568-1-4.M.
FINDINGS OF
FACT
The Industrial Commission makes the following findings of
fact:
1. Beginning in late April, 1992, Ms. Mason was employed by
Manpower, a temporary employment agency. Manpower assigned her to work at
various Circle K stores, where she removed merchandise from shelves, dismantled
the shelves, then moved, reassembled and restocked the shelves. Ms. Mason's
work involved moderate to heavy physical labor. She worked 32 hours per week at
a wage of $5 per hour.
2. While working for Manpower on the Circle K assignment, Ms.
Mason began to experience pain, particularly in her wrists. Although her
injuries caused her to miss some work, she continued to work for Manpower
through May 31, 1992.
3. During June 1982, after her work at Manpower ended, Ms. Mason
attempted to assemble bridles and cinches for compensation on a piece rate. Ms.
Mason earned only $24.50 in this endeavor. Thereafter, she did not work again
until October 27, 1992, when she returned to work for Manpower, as
follows:
|
Week Ending
|
Hours Worked
|
Earnings
|
|
11-01-92
|
10.75
|
$53.75
|
|
11-08-92
|
12
|
$60
|
|
11-15-92
|
14.5
|
$72.50
|
|
11-22-92
|
12
|
$60
|
|
11-29 92
|
0
|
0
|
|
12-06-92
|
16
|
$80
|
|
12-13-92
|
16
|
$80
|
|
12-20-92
|
16
|
$80
|
4. Ms. Mason first sought medical attention for her wrists on
July 8, 1992, when she was examined by Dr Li. During the next several months,
she was also examined and treated by Dr. Petron, an orthopedist, Dr. Provost, a
hand surgeon, Dr. Russell, a psychiatrist, Dr. Stromquist, a rheumatologist,
and Dr. Hare, a pain specialist.
5. Dr. Provost released Ms. Mason to full duty work on December
21, 1992. He also concluded that Ms. Mason's wrist injuries were caused by her
work for Manpower and had resulted in an 11% permanent whole person impairment.
In arriving at the 11% impairment rating, Dr. Provost relied upon the American
Medical Association's Guides to the Evaluation of Permanent
Impairment, Fourth Edition ("AMA Guides"
hereafter). However, Dr. Provost also commented that if Ms. Mason's loss of
grip strength was considered to be a separate and additional component of
impairment, then her overall disability would increase to a 20% whole person
impairment.
6. Manpower arranged for Ms. Mason to be examined by Dr. Sellers,
who generally concurred with Dr. Provost's conclusions. However, Dr. Sellers
noted that under the AMA Guides, Ms. Mason's loss of
grip strength already was reflected as a component of her overall impairment.
Consequently, Dr. Sellers concluded that she had suffered only an 11% permanent
impairment due to her industrial injuries.
7. In addition to her employment with Manpower, Ms. Mason is a
free lance artist. During the year prior to her injuries, she had completed
work and earned income in that field. However, during the time she was working
for Manpower, she had no works in progress and no pending commissions. During
that period, her efforts as an artist only consisted of contacting potential
customers in the hope of obtaining future work.
8. Ms. Mason has two minor children as dependents.
DISCUSSION AND CONCLUSIONS OF
LAW
As noted above, both parties have asked the Industrial Commission
to review the ALJ's decision in this matter. Manpower contends: 1) Ms. Mason's
past earnings as an artist should not be included in the computation of her
compensation amount; 2) Ms. Mason's temporary total disability compensation
should be limited to the period between July 8 and October 26, 1992; 3) Ms.
Mason should be held to the terms of a compensation...
