Eichhorn v. The Kroger Co., 050219 MSWC, 1704534-P-6465

Case DateMay 02, 2019
CourtMississippi
TERESA EICHHORN CLAIMANT
v.
THE KROGER CO. EMPLOYER
AND
KROGER LIMITED PARTNERSHIP CARRIER
MWCC No. 1704534-P-6465
Mississippi Workers Compensation Decisions
The Mississippi Workers' Compensation Commission
May 2, 2019
          APPEARING FOR CLAIMANT: Roger Doolittle           APPEARING FOR EMPLOYER AND CARRIER: Clifford Ammons           ORDER OF ADMINISTRATIVE JUDGE           ROBERT J. ARNOLD, III ADMINISTRATIVE JUDGE.          On March 13,2018, the claimant filed her Petition to Controvert alleging she injured her left shoulder on April 14, 2017, while working for Kroger Co. On April 5, 2018, employer/carrier filed an Answer to Petition to Controvert admitting that claimant sustained an injury as set forth in her Petition to Controvert.          A hearing was held in this matter on March 8,2019, at 11:00 a.m. at the Mississippi Workers' Compensation Building, Jackson, Mississippi.          ISSUES          1. The extent of permanent disability and resulting loss of wage earning capacity and/or industrial loss of use suffered by claimant, if any.          2. Whether apportionment applies such that any award to the claimant should be reduced.          STIPULATIONS          1. Claimant suffered an admittedly compensable repetitive motion injury to her left shoulder on April 14, 2017.          2. The claimant's average weekly wage is $536.53.          3. The claimant reached maximum medical improvement (MMI) on November 8,2017.          4. There is no issue as to temporary disability.          5. The claimant's current pay rate is $15.06 per hour.          EXHIBITS
The following Exhibits were entered into the record:
General Exhibit 1: Vocational Report of Pete Mills;
General Exhibit 2: The deposition of Dr. William Geissler taken February 18, 2019;
General Exhibit 3: Functional Capacity Evaluation (FCE) of Medicomp PT;
General Exhibit 4: Affidavit and medical reports of Dr. William Geissler;
General Exhibit 5: Vocational Report of Kathy Smith;
General Exhibit 6: Return to Work Evaluation Form dated December 11, 2017;
General Exhibit 7: Claimant's Post-Injury Wages;
Claimant Exhibit 8: The Kroger Store Position Profile.
         SUMMARY OF RELEVANT EVIDENCE          Mable Jones          Mable Jones is a former employee of Kroger, where she was a part-time cashier, co-manager, store manager and also held a position in Human Resources at the Kroger in McComb, Mississippi. She transferred to a Kroger store in Jackson, Mississippi, where she was a co-manager and, later, held a position in Human Resources. On October 15,2012, Ms. Jones transferred to the Kroger in Byrum, Mississippi, where she remained in a position in Human Resources. Ms. Jones' duties included facilitating "Return to Work" for employees associated with workers' compensation claims.          Ms. Jones testified that she knows the claimant and knew she had a work injury and was attempting to return to work. Ms. Jones testified that claimant's duties as a cashier included scanning items, bagging items, and at one time she stocked merchandise.          Ms. Jones completed and signed a Workers' Compensation Claim Return-to-Work Evaluation Form1 on December 11, 2017. After an interaction with claimant, Ms. Jones concluded that Kroger could reasonably accommodate claimant's job restrictions. After becoming familiar with claimant's job duties as a cashier, which included physical duties, Ms. Jones concluded that claimant could not perform the jobs of cashier and/or stock worker. Claimant was earning $14.56 per hour at Kroger in December 2017. Ms. Jones testified that claimant had a pay increase in October 2018, but was unaware of the amount of the increase.          On cross-examination, Ms. Jones testified that claimant complained of problems with her right shoulder, neck and low back in her Functional Capacity Evaluation (FCE). Ms. Jones testified that she does not dispute the recommended restrictions set forth in the FCE. Ms. Jones testified that a cashier does not have to bend over. Cashiers usually have baggers to assist with bagging the groceries for the customer. Bags are limited to eight items, and she has never seen more than twenty pounds in one bag. It was a joint decision that claimant be moved from her cashier position to the "U scan" position.          Teresa Eichhorn          Claimant was born on July 6,1953 (65) and is presently employed by Kroger on Highway 51 in Madison, Mississippi and has been employed with Kroger for twelve years. On April 14, 2017, claimant was injured while scanning items as she was working as a cashier. As a cashier, claimant was moving and lifting items more than ten pounds throughout an eight hour day. Claimant testified that she agrees with the physical job description of a cashier and a stocker. While working as a stocker, one of her duties included reaching overhead, lifting more than ten-fifteen pounds, and unloading entire pallets. She used a jack and a dolly to move pallets.          Claimant testified that the "U Scan" job she presently has at Kroger is within her restrictions. She enjoys her job and plans to continue working. She does not have to lift more than ten pounds. She does not think she can perform the cashier job. Claimant was named "Employee of the Month" while working in her "U Scan" position. Claimant testified that her wages at Kroger are determined by a collective bargaining agreement (union contract). Claimant testified that she graduated from High School and went to Northwest for one year. She worked as a CNA years ago but she is not certified. She had to lift more than ten pounds while working as a CNA. Claimant does not feel like she can return to any of her previous jobs, except she could return to the Chevron Deli job. Claimant does not own a computer and is a slow typist. Claimant also had a commercial driver's license at one time when she drove a school bus. She has arthritis now and degenerative joint disease in her back. Claimant worked in Charlotte, North Carolina at a department store. She worked in the Madison County School System as a cashier and also made sandwiches.          Claimant saw Dr. Geissler on three occasions and received three injections. She did not have surgery. She has not seen Dr. Geissler or any other physician about her shoulder since Dr. Geissler released her in 2017. Her shoulder is not as painful, and she takes Aleve on occasion.          Claimant testified that she has been back at work at Kroger since June 2017. She performs some cashier work at the "U Scan" position. She takes money and helps bag groceries. She has received pay raise. She is earning more now than she was prior to her accident. She has no problem with her current work as a cashier on "U Scan."          Claimant testified that she has not seen a physician in relation to her right shoulder. No other physical problems have kept her from working her job.          Kathy Smith, testimony at hearing          Ms. Kathy Smith is a Certified Rehabilitation Counselor and testified at the hearing that she met and interviewed claimant on October 8, 2018. They discussed her work history, education and work injury. Ms. Smith performed a "loss of access" evaluation based on claimant's profile. Ms. Smith testified that claimant has a 50% loss of access to jobs that most closely align with her pervious work experience and a 30% loss of access to jobs that are considered a good match for her similar work activities and industries. Claimant is able to earn $8.25 to $8.50 per hour for other jobs she is capable of performing. Ms. Smith testified that she reviewed Mr. Pete Mills' vocational report. ...

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