SHERRY JOHNSON, PETITIONER
v.
THE KROGER COMPANY and HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE RESPONDENTS
Claim No. 201754911
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
January 29, 2021
APPEAL
FROM HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE
COUNSEL FOR PETITIONER: LMS HON ALAN S RUBIN.
COUNSEL FOR RESPONDENT: LMS HON JAMES B COOPER.
ADMINISTRATIVE LAW JUDGE: LMS HON CHRISTINA HAJJAR
MAYO-UNDERWOOD BLDG.
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
BORDERS, Member.
Sherry
Johnson (“Johnson”) appeals from the October 17,
2020 Opinion, Award, and Order and the November 11, 2020
Order on Petition for Reconsideration rendered by Hon.
Christina D. Hajjar, Administrative Law Judge
(“ALJ”). The ALJ determined Johnson suffered a
work-related cervical spine injury while employed by The
Kroger Company (“Kroger”), for which she retained
a 5% impairment rating, enhanced by the 3x multiplier. The
ALJ further determined Johnson suffered a psychological
injury due to the assault, not resulting in any measurable
impairment, but entitling her to medical benefits for the
psychiatric condition. Johnson now appeals, arguing the ALJ
erred in not awarding permanent partial disability
(“PPD”) benefits for her psychological injury and
in not adopting the 6% impairment rating for her cervical
spine condition. For reasons set forth, we affirm.
Johnson
testified by deposition on January 16, 2020 and at the
hearing held August 25, 2020. Johnson sustained an injury to
her neck on December 6, 2017 while working as a cashier for
Kroger. At the time of the incident, she was working
approximately 30 hours per week in a cafeteria for the
Jefferson County Public Schools, part-time for Kroger, and
part-time for News America. On December 6, 2017, she tried to
help a co-worker who was being attacked by another employee
at the Kroger store. He let go of the co-worker, grabbed
Johnson by the hair, and dragged her. Another employee
convinced him to let her go. Johnson did not immediately
notice anything was hurt. She began having difficulty turning
her neck and experienced pain in her neck and back. She
eventually developed migraine symptoms. That evening she went
to BaptistWorx. The symptoms in her neck, back, and shoulders
worsened over the next two days.
Johnson
testified she still has problems with her neck. She is also
unable to lift as much as she could prior to the incident.
She cannot work as a cashier but works in the general
merchandise department where she stocks candy bars and other
light items. She is still nervous when people are around her.
Her job duties include taking boxes off pallets, putting them
on four-wheeled carts, pulling the cart onto the sales floor,
and conditioning the shelves. She also works as a cashier for
short periods once or twice a week and performs price
mark-downs. She takes anxiety medication prescribed by her
doctor. She took anxiety medication over 20 years ago when
her dad passed away. She testified the medication helps her
feel less edgy. She reported she could not return to the
cashier job because she is unable to turn her neck back and
forth constantly.
At the
hearing, Johnson reiterated she continues to have problems
with her neck, especially with turning left to right.
Although her lifting ability had improved, she was still
unable to lift as much as she had previously. Johnson was
unable to perform her work for the school district following
the injury. Johnson continued to work for Kroger and News
America, missing no days after the event despite her physical
complaints and psychological complaints. Johnson stated,
“I’m nervous still a lot. ·I still kind of
get shaken up when people are around me and stuff like
that.” Johnson reported she is still very edgy when
people are behind her. She testified there were times when
she was stocking the general merchandise shelves that she has
“jumped”, as a result of being nervous when
someone approached her from behind and her regular customers
are aware of her situation and often times will call out,
“I’m coming, I’m behind you.” She
reported she is currently not having any issues with her
lower back. She denied the ability to return to a cashier
position because of the turning of her neck, the lifting
required if no bagger is available, and because she does not
want people close to her.
Norton
Healthcare CT scans of the head and neck from December 15,
2017 revealed reversal of the normal lordotic curvature of
the cervical spine. There was severe disk space narrowing and
prominent endplate osteophyte formation at the C4-C7 levels.
...
