Stephenson v. Sugar Creek Packing

• Decision Date: 10 April 1992
• Docket Number: No. 67056,67056
• Citation: 830 P.2d 41,250 Kan. 768
• Parties: , 60 USLW 2665 Debra STEPHENSON, Appellant, v. SUGAR CREEK PACKING and Hartford Insurance Company, Appellees.
• Court: Kansas Supreme Court

Page 41

830 P.2d 41

250 Kan. 768, 60 USLW 2665

Debra STEPHENSON, Appellant, v. SUGAR CREEK PACKING and Hartford Insurance Company, Appellees.

No. 67056.

Supreme Court of Kansas.

April 10, 1992.

Syllabus by the Court

1. The standards of review to be applied to a statute alleged to be unconstitutional as a violation of the equal protection clause of the United States Constitution are reviewed and applied.

2. The equal protection guarantee of the United States Constitution does not preclude the State from classifying persons for purposes of legislation, but it does require that persons similarly situated be treated alike.

3. K.S.A.1991 Supp. 44-510d(a)(23) is unconstitutional because it violates the equal protection clause of the United States Constitution by creating a classification that is arbitrary, discriminatory, and without rational basis.

Timothy A. Short, of Spigarelli, McLane & Short, Pittsburg, argued the cause, and Fred Spigarelli, of the same firm, was with him on the brief, for appellant.

Garry W. Lassman, of Wilbert and Towner, P.A., Pittsburg, argued the cause and was on the brief, for appellees.

John M. Ostrowski, of McCullough, Wareheim & LaBunker, P.A., Topeka, Beth Regier Foerster, of the same firm, and Thomas E. Hammond, of Render, Kamas and Hammond, Wichita, were on the brief, for amicus curiae Kansas AFL-CIO.

ALLEGRUCCI, Justice:

This is an appeal by Debra Stephenson from the district court's entry of judgment affirming the award made to her by the administrative law judge in the Division of Workers Compensation. Appellees are Sugar Creek Packing, Stephenson's employer, and Hartford Insurance Company, the insurance carrier (collectively referred to as Sugar Creek). Stephenson challenges the constitutionality of K.S.A.1991 Supp. 44-510d(a)(23), which provides that compensation for "repetitive use conditions occurring in opposite upper extremities" shall be computed as separate scheduled injuries. She is joined in her challenge by amicus curiae Kansas AFL-CIO. Stephenson's motion to have the case transferred to this court was granted on November 15, 1991.

The facts are not in dispute. Debra Stephenson began working at Sugar Creek Packing, a meat packing plant, in March 1983. She worked as a "3-M Stripper." Her task involved repetitive gripping, grasping, twisting, and turning with her hands.

In October 1987 Stephenson began experiencing pain, numbness, and swelling in both hands. These problems were worsened by the requirements of her work. By December 12, 1987, she was no longer able to perform her job.

Stephenson underwent surgical carpal tunnel release on her right wrist in July 1988 and on her left wrist in October 1988. She was referred for vocational rehabilitation services until the end of May 1990.

Stephenson was unable to return to work at any wage. She stipulated before the district court that her injury was limited to the upper extremities, without extension into the shoulders.

The sole issue raised in this appeal is whether K.S.A.1991 Supp. 44-510d(a)(23) violates the equal protection clause of the United States Constitution. Stephenson argues that 44-510d(a)(23) violates the equal protection clause of the Fourteenth Amendment of the United States Constitution in treating "repetitive use conditions occurring in opposite upper extremities" as scheduled injuries rather than as disability to the body as a whole. She contends that 44-510d(a)(23) creates the only classification where injury to both opposite extremities is compensable as separate scheduled injuries. She further contends that the statutory provision is unusual in creating a classification based upon the mechanism of injury.

With regard to the legislative purpose for creating the classification, Stephenson states that it is "unclear from the legislative history." For the sake of her argument Stephenson adopts the district court's speculation that the State's objective was to reduce workers compensation insurance premiums.

Stephenson contends that the classification created by 44-510d(a)(23) should be subjected to "heightened scrutiny" because of the importance of the right to full compensation for injury. She mentions that gender-based classifications have been subjected to heightened scrutiny, but she does not argue that this classification is gender based.

She contends that the legislative goal of reducing insurance premiums does not pass muster under any level of scrutiny because the goal could be better served in other ways. She also argues that workers who develop carpal tunnel syndrome, whether from a single trauma or from repeated minute trauma, must receive the same treatment under the law because they are "similarly situated with respect to the legitimate purpose of the law."

Amicus curiae Kansas AFL-CIO wants to include in the issue whether the statute violates the equal protection clause of the Kansas Constitution. The issue of state constitutionality does not appear to have been raised in the district court, and it is not raised by appellant Stephenson on this appeal.

With regard to the scrutiny to be given 44-510d(a)(23), Sugar Creek asserts that the rational basis test is appropriate for "social and economic legislation." Sugar Creek states that it is unnecessary to ascertain the purpose of the statute under the rational basis test. For the sake of argument, however, Sugar Creek notes that the district court deemed the purpose to be lessening the cost of workers compensation insurance and the cost to industry of doing business.

Sugar Creek counters Stephenson's argument that there were better means available to the legislature to achieve the same result. Sugar Creek relies on 16 Am.Jur.2d, Constitutional Law § 237 for the proposition that a court may not substitute its notion of how an objective should be accomplished for that of the legislature.

Sugar Creek states that the calculation of compensation for scheduled injuries is not a deviation from the underlying principle of compensation law because "the schedule theoretically includes a consideration of economic loss in earning power. Larson, Worker's Compensation, (Desk Ed.) § 58.11." Sugar Creek asserts that it is not necessarily true that compensation for a scheduled injury is less than what it would be if the injury were compensated as one to the body as a whole, i.e., as a matter of disability. Sugar Creek argues that there are conditions other than bilateral carpal tunnel syndrome which depend for compensation under the Act on the mechanism or method of injury--heart and psychiatric conditions and occupational diseases. Finally, Sugar Creek cites Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), for the proposition that amendments to the Act, even ones involving abrogation of common-law rights or detriment to the employee, may be made without upsetting the constitutional balance.

The district court applied the rational basis test to the statute. No reason was expressed for rejecting Stephenson's argument that full compensation for injury is a right sufficiently important to merit heightened scrutiny. A gender basis for heightened scrutiny was rejected because "the thrust of claimant's argument is not on the gender basis" and "there is no basis in the record to conclude that this is a gender based act."

The legislative purpose which the district court said "may be conceived" for classifying bilateral repetitive use conditions of the upper extremities as scheduled injuries is lessening "the cost of workers compensation insurance and cost to industry of doing business." The district court concluded that this purpose justifies the alleged discrimination.

Under the Kansas Workers Compensation Act, injuries such as Stephenson's injury, which do not result in death or total disability, may be compensated either as partial general disabilities, K.S.A.1991 Supp. 44-510e, or as scheduled injuries K.S.A.1991 Supp. 44-510d. In Hughes v. Inland Container Corp., 247 Kan. 407, 422, 799 P.2d 1011 (1990), 44-510e was construed as requiring consideration of "both the reduction of a claimant's ability to perform work in the open labor market and the ability to earn comparable wages." K.S.A.1991 Supp. 44-510d provides that certain injuries to specified body parts are compensated under a schedule rather than with reference to the individual's loss in earning power.

Stephenson asserts: "The compensation for scheduled injuries is generally substantially less than the compensation which would be due for the same injury if compensated as permanent partial general disability or permanent total disability." The district court made the following statement with regard to the difference in the amount of the compensation:

"The employee suffering carpal tunnel injury is limited to a scheduled injury award whereas the employee suffering injury to both upper extremities other than from repetitive use is entitled to compensation as and for disability to the body as a whole; a significant distinction in terms of the amount of monetary compensation available in the usual situation."

Sugar Creek takes issue with this assertion. It postulates circumstances in which

"one may have a scheduled injury and sustain no lost time and no work disability (that is no loss of ability to obtain work on the open labor market and earn a comparable wage). In that instance he would probably receive more under the schedule than he would if he had not come under the schedule."

Stephenson received $41,765.85 for her bilateral carpal tunnel condition under 44-510d. There is nothing in the arguments or the record from which a conclusion can be drawn as to the amount she might have been awarded under 44-510e.

Typical injuries compensated under 44-510d are loss (or loss of use) of finger, toe, hand, foot, arm, leg, and eye, or loss of hearing. Loss of use of one hand due to a repetitive use condition, for example, would be compensated under 44-510d. Before 1987, ...