Jackson, MS (WorkersCompensation.com) – If a job description says a worker has to lift 50 pounds, but she can’t lift more than 20, does a position that meets the restriction involve substantial acts of the worker’s usual employment?
A Mississippi court recently faced that question when a cashier changed roles following a workplace injury.
A grocery store cashier experienced a work-related repetitive-motion injury to her left shoulder. After seven months, she reached maximum medical improvement with a 3 percent impairment to her left upper extremity and had restrictions limiting her from carrying or lifting anything over 20 pounds. Additionally, she could not lift anything above her head.
The cashier filed a petition to controvert the Mississippi Workers’ Compensation Commission. While the store admitted that the cashier experienced an injury during the course of her employment, it disputed the amount of the average weekly wage and denied that the cashier was permanently disabled “to the extent and for the period” she stated in her petition.
The cashier’s treating physician agreed with the functional capacity evaluation therapist that the cashier could perform medium-level tasks for shorter periods. Although the cashier reported that she was happy and earning more money in the position the store offered her as a replacement role, a vocational rehabilitation specialist believed she could return to her previous role if no lifting over 20 pounds was required.
This specialist also admitted that he had been unable to locate jobs where the cashier could earn a salary commensurate to her then-current wages. He also concluded that based on the written job description, the cashier couldn’t perform the duties of her previous job with her restrictions.
At the hearing, the administrative judge found that the cashier had experienced a 15 percent industrial loss of her left upper extremity and concluded that she was entitled to permanent partial disability benefits of $357.75 per week for 30 weeks.
Disputing the percentage of permanent disability awarded, the cashier filed a request for review with the WCC. The WCC affirmed the AJ’s decision, prompting the cashier to appeal to court, arguing that she had a 99 percent “loss of industrial use of her arm.”
The court explained that the case hinged on what the cashier’s “usual employment” was. Under Mississippi law, “usual employment” refers to jobs in which the worker has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by age, education, experience, and other relevant criteria.
Did the AJ focus on enough of the cashier’s work to determine what her “usual employment” was?
- Yes. In her replacement role, the cashier was able to perform substantial acts of her usual employment.
- No. The AJ (and also the WCC) focused only on the cashier job and the replacement position, which didn’t adequately consider the broad scope of the cashier’s past employment and other jobs for which she was suited.
If you chose A, you agreed with the court in Eichhorn v. Kroger Company, No. 2020-WC-00040-COA (Miss. Ct. App. 04/13/21), which upheld the AJ’s and WCC’s rulings in the store’s favor. The court highlighted that the store’s accommodation allowed the cashier to avoid a “loss of access to other employment” and experience a drop in pay. She was able to continue working in a position that met her restrictions and was similar enough to her cashier job that she was performing substantial acts of her usual employment.
Although the cashier was unable to lift more than 20 pounds, the replacement job allowed her to carry out most of what her usual employment was. As a result, the court agreed with the AJ that there was no presumption of total industrial loss of use as the cashier alleged.
This feature does not provide legal advice.