Wichita worker didn’t recover wages after injury. Would a Supreme Court decision change that?
When Sabrina Wassall worked in a food warehouse for USD 259, she injured her back lifting heavy containers of fruit one day. A physician placed her under permanent work restrictions that eventually led the district to release her. Under Kansas workers’ compensation, she couldn’t seek coverage for lost wages despite losing her job and taking a pay cut to find a new one.
That’s because a rating of her level of impairment didn’t meet the 7.5% threshold for work disability in Kansas, under a 2011 legislative amendment. Prior to 2011, there was no threshold — any impairment would qualify workers if their wage loss was related to certain types of injury.
Critics argue that the guide doctors follow to rate how impaired an injured worker is, combined with the higher threshold, make it more difficult for people like Wassall to claim work disability and wage loss.
“She lost wages because she was on work restrictions,” said Wassall’s attorney, Jon Voegeli with Wichita-based Slape and Howard. “But because of the higher threshold and lower Sixth Edition ratings, we weren’t gonna get there.”
The American Medical Association Guides to the Evaluation of Permanent Impairment offer instructions for physicians to follow when assessing the impairment of an employee hurt at work. The newest version, the Sixth Edition, now faces a constitutional challenge under consideration by the Kansas Supreme Court.
In Johnson v. U.S. Food Service, at question are the alleged lower impairment ratings under the Sixth Edition compared to the Fourth Edition, the prior version used in Kansas. Impairment ratings determine the amount of compensation injured workers receive, with lower ratings typically leading to lower rewards.
In the Supreme Court case, injured worker Howard Johnson argued that the use of the Sixth Edition was the last straw in a series of changes to state workers’ compensation that have chipped away at benefits so greatly, the system no longer operates constitutionally.
If justices strike the Sixth Edition, someone like Wassall could have earned compensation for lost wages, Voegeli said.
The combination of the Sixth Edition with the 7.5% threshold has driven down the number of work disability claims in Kansas, said Voegeli.
“There are a lot of barriers in order for us to get to that work disability. It used to be more accessible,” Voegeli said.
Wassall still deals with restrictions at her new job, but was happy to find a good fit. However, work isn’t the only part of life where Wassall has limits now.
“It impacts you in ways beyond work,” Wassall said of her injury. “I’ve learned how to manage it, but you have to alter your whole life.”
Heavy lifting leads to injury at work
In April 2016, Wassall lifted a case of fruit into a container. The district had large cans of bulk fruit that could be 10 to 15 pounds each. She typically picked up six of the cans in a case at a time.
As she raised a fruit case to place into the container, she bent around and immediately felt a sharp pain in her back. She stopped and paused her work.
The next morning, she couldn’t easily get dressed or use the bathroom, she said. She called her employer and the district sent her to physical therapy to see if it would improve her condition.
That didn’t work, said Wassall, 49. When she returned to work, the pain continued, on and off again.
One spinal surgeon told her she needed surgery. Another said that condition wasn’t caused by what happened at work, and the injury could instead be treated with injections. Differing opinions can be common in workers’ compensation cases.
The treating physician gave Wassall permanent work restrictions of lifting no more than 35 pounds, effectively ending her ability to do her job. By 2018, the district released her from employment. USD 259 had a policy to provide accommodated work for 180 days before legally letting an employee go, Voegeli said.
“So she lost her job, has this injury and pain, and there’s nothing she can do to pursue wage loss,” Voegeli said.
Before the injury, Wassall worked in the warehouse for about three years. Prior to that position she worked in restaurants for a decade.
In May 2019, Wassall found a new job at another warehouse in Wichita, Boot Barn, that didn’t require as much heavy lifting. When her pain flares up, her employer is able to accommodate her.
However, Wassall took a pay cut to get that job. If she was eligible for work disability, which allows employees to pursue lost wages under workers’ compensation, it would have made up for some of her lost earnings, Voegeli said.
Wassall still feels pain in her lower back today, more than four years later. It hurts to sit in the bleachers and watch her kids’ sporting events, she said, or to sit in a car for too long. Her family once drove to Austin for a baseball tournament and she felt discomfort for most of the car ride. She used to be an avid bike rider, but said she can’t handle even that anymore.
At least one Kansas physician doesn’t believe the AMA Guides allow him to consider pain in an employee’s impairment rating. Dale Dalenberg is an orthopedic surgeon at AdventHealth in Ottawa who rates injured workers on behalf of both employer and worker attorneys.
“AMA guides don’t give you much for your pain, and I think that’s where they fall down,” Dalenberg said. “A lot of patients get very low ratings, like 5%, but they’re incapacitated and unemployable. Especially with back pains.”
Dalenberg said the Sixth Edition — or any edition of the AMA Guides — should be just one part of how physicians determine impairment, rather than the sole procedure to follow.
Other states have decided to de-emphasize the AMA in workers’ compensation. In Pennsylvania, the state Supreme Court struck the use of the Sixth Edition in 2017, finding it unconstitutional to delegate impairment rating to any edition of the AMA. Other states, like Oklahoma, have upheld the Sixth Edition.
Attorneys in Supreme Court case weigh in on work disability
Some attorneys argue a worker’s level of pain is subjective. Michelle Daum Haskins, who represents U.S. Food Service in the case before the Supreme Court, believes physicians should consider only objective components in impairment ratings.
At the same time, she hopes doctors acknowledge everything they know about a patient when rating them, including any extreme pain.
“I think it’s too black and white to say that doctors have no leeway under the Sixth Edition to deviate, because that’s simply not what I’m seeing,” Daum Haskins said.
The adoption of the AMA Guides was intended to create a more objective measure of impairment in the first place, said Mark Kolich, who represents Johnson in the Supreme Court case. The Sixth Edition was published in 2007 and the Fourth Edition in 1993. Kansas did not adopt the Fifth Edition, released in 2000.
Daum Haskins has seen the Fourth and Sixth edition ratings grow closer in the last few years. Kolich maintained the Sixth Edition ratings are significantly lower in nearly every case.
“The difference is significant,” Kolich said. “But the more significant factor is that in 2011, they changed the definition of work disability. Now you have to meet a threshold of 7.5% functional impairment.”
Kolich, like Voegeli, said work disability claims are increasingly rare in Kansas. It used to be a significant benefit for employees who couldn’t return to earning a comparable wage, he said.
Now, he contended the reduction in work disability cases is a serious problem in the state.
“Howard Johnson was lucky because he was able to get back to work,” Kolich said of his client. “But had he not been able to go back to work, he couldn’t claim work disability.”
Daum Haskins said she has also seen fewer cases of work disability now than in years past. However, she pointed to prior cases that played a role before the adoption of the Sixth Edition.
Bergstrom v. Spears Manufacturing Co. was a 2009 Kansas Supreme Court decision on workers’ compensation. It opened the door for workers with specific types of injury to claim work disability if they ceased earning for any reason, said Daum Haskins, even if the employee chose to leave the position.
After the Bergstrom case, it was easier for workers to claim wage loss, attorneys said. That decision in part led to the 2011 change that created the threshold for work disability.
“It’s with this backdrop that some of these changes were brought about,” Daum Haskins said. “So the Legislature said, we’re not going to allow people with lesser injuries to automatically get work disability.”
Workers’ compensation created a compromise. Injured workers gave up their right to a jury trial in order to quickly have their medical costs covered. In releasing that right, the system should provide adequate compensation in return. Attorneys refer to this as the “quid pro quo” or the “grand bargain.”
It doesn’t make sense to analyze every past legislative amendment to workers’ compensation in the state, said Daum Haskins.
“If we litigate every amendment to see if it still maintains the grand bargain, we’re gonna be bogged down,” she said. “I think as long as there’s still a recovery afforded the person, the grand bargain still works.”
For most, work comp runs in the background
Wassall still feels the pain from her injury today. After traveling to cities and towns across Kansas to see different doctors over the years, she still hasn’t received the surgery recommended to her by the first physician.
She had to see the previous spinal surgeon under her personal health insurance. The surgery will also be covered under her own insurance, rather than workers’ compensation, as part of her settlement agreement. She chose to wait for surgery until she’s in desperate need of it.
From restaurants to warehouses, nearly every job Wassall held previously involved physical activity. She said she was lucky to find her current employer, which hired her seasonally. She has since moved into a role that involves more management, knowing she can’t return to heavy lifting because of her condition.
Voegeli, the attorney, said he negotiated a good settlement in Wassall’s case: about $45,000 instead of the $3,400 reward offered to her with the lower rating under the Sixth Edition. They made compromises, including giving up future coverage of the surgery.
But $3,400 would not have been enough to compensate for her work restrictions and lost wages to date, Wassall said.
“It’s something that runs in the background until you need it,” Voegeli said of workers’ compensation. “Part of the problem is that it’s so complicated, unless it’s directly affecting you, your eyes glaze over.”
When Wassall walked into work in Wichita that day four years ago, she couldn’t have guessed what would happen and how it would change both her work and personal life. She didn’t have previous problems with her back and it took nearly three years to close out her workers’ compensation case.
“This is why a lot of people don’t even mess with it,” Wassall said. “They don’t want to deal with everything I had to go through.”
This story was originally published November 27, 2020 at 4:33 AM with the headline "Wichita worker didn’t recover wages after injury. Would a Supreme Court decision change that?."
