Johnson v. US Food Service
Kansas Supreme Court, No. 117,725
January 8, 2021
In a long-awaited decision, the Kansas Supreme Court has now rendered a 9-page opinion in the latest challenge to the 2013 statutory amendment requiring permanent impairment to be determined based on the AMA Guides to the Evaluation of Permanent Impairment, 6th Edition. In reversing the Court of Appeals opinion that the statutory requirement to be unconstitutional under Kansas law, the Kansas Supreme Court concluded the 6th Edition is intended to “serve as a starting point for any medical opinion” rather than mandate that functional impairment is set by guides. As a result of the Guides merely being a starting point, “percentage of functional impairment—must always be proved by competent medical evidence” regardless of which Guides apply.
While this may appear to clear the way for the status quo, and no longer require parties to obtain a 4th Edition rating, there are several other questions which may now be raised by the language in which the Supreme Court has reached conclusion. For example, can physicians now exceed the ratings permitted under the 6th Edition, or continue use of the 4th Edition so long as the 6th Edition is merely a starting point? Can a physician combine multiple impairments to the same body structure, or include conditions for impairment which are not contained within the bounds of the 6th Edition on the same reasoning? These are questions which may yet require further review into the future as workers and employers/insurers now work to apply this new interpretation. Ultimately, the credibility of the physician and injured worker will still impact the persuasive value of any rating presented to an ALJ.
For recap, prior to January 1, 2015, permanent partial impairment was to be assessed using the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition. After this date, permanent partial impairment was to be assessed using the later 6th Edition.
Howard Johnson sustained a work-related neck injury on October 16, 2015. Dr. Hess assessed a 6% permanent partial impairment under the AMA Guides, 6th Edition. In later testimony, Dr. Hess indicated that the AMA Guides, 4th Edition would have dictated a 25% permanent partial impairment, which he believed to be representative of Mr. Johnson’s true impairment in considering loss of motion and potential need for future surgery. Mr. Johnson obtained a separate opinion from Dr. P. Brent Koprivica, who agreed that under the 4th Edition, the injuries were sufficient to represent a 25% permanent partial impairment.
At regular hearing, the ALJ awarded $14,804.70 for 6% permanent partial impairment under the 6th Edition, while noting a difference of approximately $47,000 between the 4th Edition and 6th Edition ratings. The Appeals Board affirmed the ALJ’s award, refraining from constitutional arguments due to lack of jurisdictional authority to redress. In a 33-page opinion of the Court of Appeals panel, without dissent, the Court held that the statutory language requiring the use of the 6th Edition, have emasculated the Act to the point that it is no longer an adequate remedy for injuries sustained on or after January 1, 2015. Accordingly, the Court reasoned that the most appropriate remedy, as in Pardo, was to sever the unconstitutional portion of the statute and remand to the ALJ for further determination under the remaining statute—resulting an application of the 4th Edition to all claims, both before and after January 1, 2015.
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