State News : Kansas

2019 Kansas Legislature:  There were no substantive Kansas work comp legislative changes in 2019.

Constitutionality of Statute Requiring Use of AMA Guidelines 6^th Ed. –Johnson case pending before the Kansas Supreme Court:  As of August 1, 2019, the Kansas Supreme Court is considering an appeal from a decision by the Kansas Court of Appeals which issued a broad constitutional rejection of Kansas’ use of the AMA Guides to the Evaluation of Permanent Impairment 6^th Edition to determine permanent partial functional impairment in Kansas work comp cases.

In Johnson v. U.S. Food Serv., 56 Kan. App. 2d 232, 427 P.3^rd 996 (2018), the Kansas Court of Appeals ruled across the board striking down all 2013 Kansas act amendments which substituted the use of the AMA Guides 6^th Ed. for the AMA Guides 4^th Ed. to both scheduled and general body disabilities.  The Court’s ruling broadly applies to all injured workers and all body part ratings.  In colorful literary prose, theJohnson Court focused in on the question of whether the 2013 legislative substitution of the 6^th Ed. for the 4^th Ed. finally so tipped the scales that the Act’s workers compensation legislative remedy is no longer an adequate substitute for the loss of the injured employee’s original common law tort remedy.  The Court held that the use of the 6^th Ed. over the 4^th Ed. so drastically cut the remedy and monetary recovery of Kansas’ injured workers, that there is no longer an adequate quid pro quo for injured workers suffering a permanent impairment of function for their work injury.

Approaching the issue from a historical perspective, the Court noted that multiple pro-employer legislative revisions to the Kansas Act over the years has resulted in injured workers seeing a gradual erosion of the fair exchange between rights granted under the Act verses the recovery rights lost under common law, equivalent to “death by a thousand paper cuts” for the permanently disabled worker in Kansas.

Note that Kansas never adopted the AMA Guides 5^th Ed., going directly from use of the 4^th Ed. to the required use of the 6^th Ed. under the 2013 legislative paper cut.  Thus, the ultimate outcome of this issue will likely be the binary choice between whether the law mandates use of the 4^th Ed. or the 6^th Ed. of the AMA Guides.

The Johnson decision by the Kansas Court of Appeals was timely appealed to the Kansas Supreme Court and on February 28, 2019 the Supreme Court accepted the Petition for Review of the Court of Appeals decision.  As of August of 2019, the Court is towards the end of the briefing process and it is likely oral arguments will be scheduled for some time in late 2019 or early 2020.  It is anticipated that a decision by the Kansas Supreme Court will be issued by spring 2020.

During the pendency of this appeal, most parties to active ongoing litigated KS work comp cases are procuring both AMA Guides 4^th Ed. and 6^th Ed. impairment rating opinions, not knowing which Edition will apply after the Supreme Court decides the issue.  Employers, carriers and TPAs should consult with defense counsel when considering settling any Kansas work comp claim, particularly regarding what rating opinions would be needed to reliably accomplish a claim settlement before a Kansas settlement judge.

2019 Kansas Schedule of Medical Fees.  The updated 2019 Kansas Medical Fee Schedule effective on and after March 29, 2019 and applicable to Kansas work comp claims can be found on the Kansas Division of Workers Compensation web site at the following link:

https://www.dol.ks.gov/docs/default-source/workers-compensation-documents/schedule-of-medical-fees/2019-schedule-of-medical-fees.pdf?sfvrsn=b0a18e1f_12

2019 Rates Update.  The maximum weekly indemnity benefit rate was increased to $666.00, effective 7/1/2019 through 6/30/2020, based upon annual indexing to the state average weekly wage of $888.29.  The minimum weekly benefit rate for fatalities for the same period, pursuant to K.S.A. 44-510b, is increased to $444.00.  Medical mileage reimbursement rate for the same period increased to $.58 cents per mile.