Kansas Court of Appeal Finds AMA Guides 6th Edition Unconstitutional

Howard Johnson v. U.S. Food Service (Kansas Court of Appeals No. 117,725; August 3, 2018; Case Commentary)

A little more than 2 months after the Pardo decision, in which the Kansas Court of Appeals held the AMA’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“6th Edition”), to be unconstitutional as it applied specifically to Mr. Pardo (the injured worker), the Kansas Court of Appeals, in Johnson v. U.S. Food Service, was asked to determine whether use of the 6th Edition is unconstitutional on its face.

Facts:Howard Johnson worked as a delivery driver for U.S. Food Service. Johnson injured his neck and filed a claim for compensation on November 17, 2015. Dr. Harold Hess performed back fusion surgery on Johnson in January of 2016. Johnson returned to work in April of the same year but continued to experience injury symptoms. Dr. Hess used the 6th Edition to determine 6% impairment of the whole person but noted if he had used the AMA’s Guides to the Evaluation of Permanent Impairment, 4th Edition (“4th Edition”), Johnson’s rating would’ve been 25%. Additionally, Dr. Preston Brent Koprivica testified that Johnson’s impairment would have been a minimum 25% rating under the 4th Edition. 

Held: The Court of Appeals, held that use of the 6th Edition to evaluate an injured worker’s permanent impairment is unconstitutional. They opined, with the Legislature’s adoption of the use of 6th Edition in 2015, the Act no longer provided an adequate quid pro quo for injured workers who suffer permanent impairment. Thus, due to severability clause provided in K.S.A. 44-574(b), the 4th Edition will be reinstated for evaluating permanent impairment of injured workers. 

Commentary: Similar to Pardo, here, the court went into great depth to discuss the social trade-off and theory behind workers’ compensation law. This provided important context as the analysis of the statute’s constitutionality centered around whether or not the Act, in its current form, provided an adequate substitute remedy for an injured worker’s right to bring a common-law action for the recovery of injuries and damages. The trade-off allows injured employees to receive limited benefits, regardless of fault, while eliminating their right to recover full tort damages in civil cases where the employer may be at fault. 

The Court was very focused on the 2011 amendments to the Act. The Court stated, “with the 2011 amendments claimants’ right to recovery were diminished in a number of ways...” They opined, with the 2011 amendments in place, the 2015 amendment to adopt the 6th Edition tipped the Act over the “constitutional edge” due to the drastic reduction by the 6th Edition to the compensation for permanent partial impairment. 

While Pardo was not appealed to the Supreme Court, it will be interesting to see if, and how, Howard Johnson v. U.S. Food Serviceprogresses as there is significantly more at stake than with the Pardo decision.

Caselaw update provided by contributions from Weston Mills and Zachary Kastelic, attorneys with the Kansas City office of Gilson Daub, LLP.

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