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Update On Requirement Of Kansas Work Comp Impairment Ratings Being Based On The AMA Guides To The Evaluation Of Permanent Impairment 6th Ed. – Latest Word From Kansas Appellate Courts For 2023. This update follows the 2021 Kansas Supreme Court decision in Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021) and several Kansas Court of Appeals decisions following, interpreting, and applying Johnson. On January 8, 2021, the Kansas Supreme Court issued a 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. in Kansas workers compensation cases.
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 opened 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 Supreme Court in Johnson, 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 an impairment rating analysis. 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, if the rating opinions also qualify under part-two of the legal test as “competent medical evidence.”
The statutory context of the Johnson issue of whether use of the 6th Ed. was constitutional in relation to determining impairment for general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B). In Kansas, general body disability injuries are considered the exception, and scheduled disabilities as listed in the statute are considered the general rule. A follow up question after the Supreme Court’s Johnson decision was whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the requirement of using 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 that statutory 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, early 2022 and 2023 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 published 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.
Th most recent Kansas Court of Appeals application of the Johnson court two-part test following the published Court of Appeals decision in Garcia is the unpublished decision issued by a three-judge panel of the Court of Appeals on February 24, 2023, in Ortega v. Encore Rehabilitation Services LLC, No. 124,824 (Kan App 2023) (unpublished opinion). In Ortega, the Court of Appeals followed part-one of Justice Stegall’s two-part test and held that it must, under Johnson, “start with the AMA Guides 6th Ed.” Under part-two of the Johnson test, the Ortega majority held that other competent medical evidence supported that the 6th Ed. rating should be more heavily weighted over the claimant’s expert 4th Ed. rating opinion. In short, the Ortega majority more closely followed the Zimero approach but without stating that the 4th Ed. can no longer be considered, as Zimero held. A dissenting opinion in Ortega articulated that the case should be remanded back for additional medical evidence for a re-evaluation of the “competent medical evidence” part of the two-part legal test.
The bottom line as of 2023 is that for general body disability claims Kansas law requires that Justice Stegall’s Johnson two-part test is still controlling and in effect, and all impairment rating opinions must: 1) start by using the AMA Guides 6th Ed.; and 2) to the extent there is deviation from the AMA Guides 6th Ed., the impairment rating opinion must satisfy part-two of the legal test that for any medical expert impairment rating opinion not using the AMA Guides 6th Ed., that opinion must be explained under the “competent medical evidence” prong of the test. As a practical matter for parties currently in disability compensation litigation in general body disability claims, this situation means that it is likely medical rating opinion evidence which uses other editions of the AMA Guides, other than the 6th Edition, will not be automatically excluded (as Zimero seemed to hold), but can be attacked factually using the “competent medical evidence” prong of the two-part test. The practical effect of this for parties in litigation is it will likely increase the cost and scope of workers’ compensation final award litigation in Kansas.
The bottom line as of 2023 for scheduled disability claims in Kansas, is that the rating opinions must be based upon the AMA Guides 6th Ed. or the party risks that the rating opinions will not be considered by the court in issuing a disability compensation award.
2023 Kansas Work Comp Legislative Update. There were no substantive Kansas work comp legislative changes of import in 2023 to the Kansas Workers Compensation Act.
2023 Rates Update. The maximum weekly indemnity benefit rate increased to $804.00, effective for accidents occurring 7/1/2023 through 6/30/2024, based upon annual indexing to the state average weekly wage. Likewise for the same period, the minimum weekly benefit rate for fatalities increased to $536.00. Effective for medical travel after July 1, 2023, the medical mileage reimbursement rate increased from $.585 cents per mile to $.655 cents per mile.
© Copyright 2023 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.