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Korner v. Education Management Corp.

The preponderance of competent evidence did not support the superior court's determination that appropriate work was available in the employee's workers' compensation case.

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We granted Sherry Korner’s application for discretionary review in this worker’s compensation case after the superior court found that Korner had undergone a change for the better, was able to return to work because of the change, and there was appropriate work available. In making these findings, the superior court reversed the holding of the Board of Worker’s Compensation’s Appellate Division. The appellate division had held that Korner’s former employer had not carried its burden of showing that suitable work was available. Because there was evidence to support the appellate division’s holding, we reverse. This case arose when Korner, who was employed by Education Management Corporation EMC as a clinical therapist, was attacked on February 21, 2001, by a student that she was counseling. Her physical injuries resolved within a few weeks; however, she has received psychological and psychiatric treatment for several years for Post Traumatic Stress Disorder caused by the attack. It is undisputed that she can no longer work with individuals who have psychological problems.

The record shows that Korner has a B.A. and a Master’s Degree in social work with a specialization in clinical social work. Korner received her Master’s Degree in May 1978, and since that time has worked in residential treatment centers, the public school system, private practice, and almost four years for EMC before the attack. Korner has not worked since the attack but instead has enrolled in school in order to establish a new career.

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