Eichhorn v. Kroger Co.

Decision Date13 April 2021
Docket NumberNo. 2020-WC-00040-COA,2020-WC-00040-COA
Citation325 So.3d 692
Parties Teresa L. EICHHORN, Appellant/ Cross-Appellee, v. The KROGER COMPANY and Kroger Limited Partnership I, Appellees/ Cross-Appellants.
CourtMississippi Court of Appeals

ATTORNEYS FOR APPELLANT: FLOYD E. DOOLITTLE, ROGER K. DOOLITTLE, Jackson

ATTORNEYS FOR APPELLEES: CLIFFORD B. AMMONS, CLIFFORD BARNES AMMONS JR., Jackson

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. On April 14, 2017, Teresa Eichhorn, a sixty-three-year-old cashier with The Kroger Company,1 suffered a work-related repetitive-motion injury to her left shoulder. Seven months later, she reached maximum medical improvement (MMI) with a three-percent impairment to her left upper extremity and was given the following restrictions: not to carry or lift anything over twenty pounds and not to lift anything above her head. Eichhorn returned to work as a "U-scan" cashier, a light-duty position.

¶2. Eichhorn filed a petition to controvert with the Mississippi Workers' Compensation Commission (Commission) on March 13, 2018. Kroger admitted that Eichhorn had sustained an injury during the course of employment but disputed the amount of the average weekly wage stated in her petition. Kroger also denied that Eichhorn was "permanently disabled to the extent and for the period stated in the [p]etition to [c]ontrovert" and asserted an affirmative defense of apportionment, claiming that Eichhorn "suffer[ed] from [a] pre-existing disease." Kroger further noted Eichhorn had received compensation in the amount of $2,361.15.

¶3. A hearing was held before the Commission's administrative judge (AJ) on March 8, 2019, to address two issues: (1) "the extent of [Eichhorn's] permanent disability and resulting loss of wage-earning capacity and/or industrial loss of use suffered"; and (2) whether apportionment would apply to any award.

¶4. Eichhorn's treating physician, Dr. William Geissler, testified by deposition that Eichhorn had injured her left shoulder while scanning groceries but had no history of injury to any other part of her anatomy. He noted that her MRI indicated "partial tears of the supraspinatus tendon versus tendonitis" and that she had undergone physical therapy prior to seeing him. When Dr. Geissler saw Eichhorn in August 2017, she expressed to him that "she didn't feel she could go back to scanning groceries at that point." Dr. Geissler agreed with the Functional Capacity Evaluation (FCE) therapist that Eichhorn may be able to perform medium-level tasks for shorter periods. He further agreed with the restrictions in the FCE with regard to Eichhorn's left shoulder. Although Dr. Geissler acknowledged that Eichhorn had reported "[p]ain in neck and right shoulder with lifting" and "in low[er] back with bent forward positions" in the FCE, she had only listed a problem with her left shoulder in the patient intake form.

¶5. Mabel Jones, a former human-resources employee for Kroger, testified that she had assisted in facilitating Eichhorn's return to work. Jones met with Eichhorn regarding the physician's restrictions and felt that she could not return to her regular duties as a cashier. Greg Hayes, the co-manager for the Kroger where Eichhorn is employed, acknowledged that the written job description for a cashier position at Kroger requires lifting up to fifty pounds but explained that cashiers typically do not lift over twenty pounds due to scanning technology. Hayes also confirmed that Eichhorn's current position as a "U-scan" cashier is a permanent, full-time position at Kroger.

¶6. Eichhorn testified that when working as a cashier, she had to lift items over twenty pounds. She had also worked as a clerk/stocker, which required her to lift items above her head. Eichhorn testified that her current position as a "U-scan" cashier was within her restrictions and that she was happy with that job. She also acknowledged that under her union contract, she had received a pay increase and now earns more than at the time of her injury.

¶7. Kathy Smith, a certified rehabilitation counselor, interviewed Eichhorn on October 8, 2018. At the hearing, Smith opined that Eichhorn had a "30 to 50 percent loss" of access to jobs. Pete Mills, a vocational rehabilitation specialist testifying on behalf of Kroger, stated that he had examined Eichhorn's work history and reviewed her medical reports and the FCE. Mills said that he believed someone could return to cashier work at Kroger if no lifting over twenty pounds was required, noting Hayes's testimony at the hearing and his description of the cashier duties. However, Mills acknowledged that he had stated in his report that based on the written job description and her restrictions, Eichhorn could not return to her pre-injury job at Kroger. He also admitted he had been unable to locate any other jobs in the current labor market where Eichhorn could earn a salary commensurate to her current wages.

¶8. The AJ issued his order on May 2, 2019, finding Eichhorn had "suffered a 15% of industrial loss of use of a scheduled member, her left upper extremity." The AJ concluded that Eichhorn was entitled to permanent partial disability benefits of $357.75 per week, for thirty weeks beginning November 9, 2017,2 with credit to be given to Kroger "for any and all monies, wages[,] and previously paid to claimant." The AJ further held that apportionment was not applicable, as "there was no showing of previous permanent impairment to claimant's left shoulder[,] and the benefits awarded are not based on any other previous impairments she may have had to other parts of her body[.]"

¶9. Aggrieved at the percentage of permanent disability awarded, Eichhorn filed a request for review with the Commission. She also filed a motion for the recusal of the Commission's chairman on July 20, 2019, which the Commission denied. On December 20, 2019, the Commission affirmed and adopted by reference the AJ's decision.

¶10. Eichhorn alleges that the Commission erred in denying her motion to recuse the chairman, and she challenges the AJ's determination of "usual employment" and percentage of permanent partial disability. Kroger has also filed a cross-appeal of the AJ's finding of a fifteen-percent permanent partial disability, arguing that the AJ "totally disregarded" the FCE and Dr. Geissler's testimony in reaching "a 15% industrial loss of use to the left arm" and that Eichhorn's disability "should have been no more than the 3% medical impairment rating." Finding there was substantial credible evidence to support the Commission's decision, we affirm.

STANDARD OF REVIEW

¶11. "It is well-settled law in this State that the Commission is the ultimate finder of fact in workers' compensation cases, and where substantial credible evidence supports the Commission's decision, then, absent an error of law, the decision must stand without judicial interference." Hayes v. Howard Indus. Inc. , 284 So. 3d 787, 793 (¶19) (Miss. Ct. App. 2019) (quoting Logan v. Klaussner Furniture Corp. , 238 So. 3d 1134, 1138 (¶11) (Miss. 2018) ). Thus, we will only reverse the Commission's decision "if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law." Id . (quoting Logan , 238 So. 3d at 1138 (¶11) ). Issues of law are reviewed de novo. Id . (citing Weathersby v. Miss. Baptist Health Sys. Inc. , 195 So. 3d 877, 882 (¶21) (Miss. Ct. App. 2016) ).

DISCUSSION
I. Whether the Commission erred in denying the motion to recuse the Commission's chairman.

¶12. Eichhorn filed a motion for the chairman of the Commission to recuse himself, alleging that he was "hostile" to the interests of claimants and had "engag[ed] in extensive legislative and political activity ... inconsistent with the independence and impartiality of a ‘trier of fact.’ " For these reasons, she claimed that the chairman had violated Mississippi's Code of Judicial Conduct.

¶13. Adopting the standard for recusal employed by the Mississippi Supreme Court in Byrd v. Greene County School District , 633 So. 2d 1018 (Miss. 1994), the Commission denied the motion to recuse, finding the record "void of allegations of the [c]hairman's financial interest in this matter[,] as well as lack of proof of personal animosity toward the [c]laimant." Byrd involved a teacher who was terminated because of budget constraints and later requested that the school board's hearing officer recuse himself because the officer was employed by a law firm that had represented the school district in other matters. Id . at 1021. The hearing officer denied the request, and the school board voted not to renew the teacher's contract for the following year. Id .

¶14. The chancery court in Byrd determined on appeal, however, "that a reasonable person would have doubted the impartiality of the hearing officer and ruled that [the hearing officer] should have recused himself." Id . The school district cross-appealed the chancery court's ruling, "argu[ing] that the [court] applied the wrong standard for determining whether recusal was proper." Id . at 1022. The supreme court agreed, reasoning:

This Court has established that there is "a presumption of honesty and integrity in those serving as adjudicators." Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District , 515 So. 2d 893, 898 (Miss. 1987) ; Dampier v. Lawrence County School District , 344 So. 2d 130, 132 (Miss. 1977). When a school board is acting in an adjudicatory capacity, the teacher must rebut this presumption by showing that the board members had a personal or financial stake in the outcome of the decision or that there was some personal animosity toward the teacher . Spradlin , 515 So. 2d at 898 ; Dampier , 344 So. 2d at 132.

Id . (emphasis added). Eichhorn argues that the Commission erred by not applying the Code of Judicial Conduct and, instead, employing the standard for recusal outlined in Byrd .3

¶15. In United Cement...

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    ...supports the Commission's decision, then, absent an error of law, the decision must stand without judicial interference." Eichhorn v. Kroger Co. , 325 So. 3d 692, 695 (¶11) (Miss. Ct. App. 2021) (quoting Hayes v. Howard Indus. Inc. , 284 So. 3d 787, 793 (¶19) (Miss. Ct. App. 2019) ). "Subst......

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