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Workers’ Compensation Emerging Issues – Kansas 2022
Constitutionality of Statute Requiring Use of AMA Guidelines 6th Ed. – Follow up to the 2021 Johnson case decision issued by the Kansas Supreme Court. Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021). On January 8, 2021, the Kansas Supreme Court issued its much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act. The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate." Therefore, the high court found the statutory provision requiring use of the 6th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6th Ed.
The court went on to indicate that use of the 6th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries. With this language, the Court appeared to open the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6th Ed. is at minimum a starting point.
The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Court, delivered something for everyone in the Supreme Court’s Johnson decision. For the employer and carrier side, the 6th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point. For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6th Ed. of the AMA Guides, as long as the rating opinions also qualify as “competent medical evidence.”
The statutory context of the Johnson issue of whether use of the 6th Ed. was constitution, was in relation to general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B). The next question after Johnson is whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the mandate to use the AMA Guides 6th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis. The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities. The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6th Ed., if the impairment is contained therein. The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute. The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute requires the functional impairment to be based upon the 6th Ed. There is no explicit requirement in the language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.
In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6th Ed. for a shoulder injury. The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court. That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6th Ed. as required by the plain language of the statute.
Several notable Kansas Court of Appeals decisions in late 2021 and early 2022 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.
On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021). Zimero held that for a general body disability compensation claim, “any reference to the 4th Edition for injuries occurring after January 1, 2015, is irrelevant. The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4th Edition or the 6th Edition. The 6th Edition is statutorily required.”
Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021). The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6th Edition.
Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4th Edition when awarding permanent impairment of function compensation. Zimero clearly holds that the 4th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4th Edition may be reversable error.
The bottom line at present is that it is not clear whether the plain language of our current statute requiring use of the AMA Guides 6th Edition should be interpreted, after Johnson, to mean that permanent impairment compensation in general body disability claims can be awarded using other AMA Guide Editions other than the Sixth Edition. As a practical matter for parties currently in litigation in general body disability claims, this situation means that it is likely medical opinion evidence using other editions of the AMA Guides, other than the 6th Edition, will be presented to the administrative law judges and either asserted or attacked by the parties, thereby increasing the cost and scope of workers’ compensation final award litigation.
2022 Kansas Work Comp Legislative Update. There were no substantive Kansas work comp legislative changes of import in 2022.
2022 Rates Update. The maximum weekly indemnity benefit rate increased to $765.00, effective 7/1/2022 through 6/30/2023, based upon annual indexing to the state average weekly wage. Effective July 1, 2022, the medical mileage reimbursement rate increased from $.56 cents per mile to $.585 cents per mile.
© Copyright 2022 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.