No. 116,842, 2018 WL 2454921 (Kan. App. June 1, 2018)
Factual
Background:
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, the Kansas legislature, by
statutory amendment, provided that all claims for permanent partial impairment
were to be assessed using the later 6th Edition of the Guides.
Francisco
Pardo sustained a work-related rotator cuff by acute injury in 2013. In the 2013 injury, Mr. Pardo received a 10%
rating to the shoulder by treating physician, Dr. Mark Rasmussen, and settled
his claim for 15% permanent partial impairment.
The prior rating was issued under former 4th Edition statutory
requirement. Subsequently in the 2015
injury, following further surgical treatment provided, Dr. Rasmussen assessed a
5% rating in addition to the earlier 10% pre-existent impairment, noting that
the sum of which resulted in the total 15% previously bargained for in the
prior settlement.
Mr.
Pardo then obtained an opinion from a separate physician, Dr. P. Brent Koprivica. Dr. Koprivica opined that the 6th Edition,
when strictly interpreted as required by statute, dictated that an individual
with a painful rotator cuff injury and residual symptoms without consistent
objective findings would result in impairment of 0-2%--and that “[t]his
impairment can only be given once in an individual’s lifetime.” Dr. Koprivica thus assessed a 0% impairment
to the 2015 work injury, while also noting that application of the 4th Edition
would result in a 10% impairment to the shoulder after exclusion of the prior
15% determined by settlement award. In
deposition testimony, Dr. Rasmussen did concur that a strict interpretation
would yield the result formulated by Dr. Koprivica.
After
regular hearing, the ALJ issued an award denying compensation to Mr.
Pardo. In doing so, the ALJ concluded
that the evidence of a new and distinct injury to the shoulder was clear, but
that Mr. Pardo was prevented from receiving compensation where he has previously
received compensation for the shoulder under the 6th Edition Guides.
Appeal
Board Decision:
Limited
from addressing constitutional claims, the Appeals Board affirmed the
denial. However, noted in a board
member’s concurring order is that if he “had the authority and jurisdiction to
do so, he would declare the portion of K.S.A. 2014 [Supp.] 44-510d(b)(23)
requiring the use of the AMA Guides [Sixth Edition], as applied to [Pardo],
unconstitutional”. The appeal board
member reasoned that the 6th Edition was not reasonably necessary to promote
the general welfare of the state and made the quid pro quo of the exclusive
remedy inadequate in Mr. Pardo’s situation.
Analysis/Holding:
As
applied to Mr. Pardo, the Court of Appeals held that the portion of K.S.A. 2014
[Supp.] 44-510d(b)(23) requiring the use of the 6th Edition is
unconstitutional, thereafter concluding that the most appropriate remedy was to
sever the unconstitutional portion of the statute and remand to the ALJ for
further determination under the remaining statute—effectively resulting in an
application of the 4th Edition to Mr. Pardo, instead.
Mr. Pardo raised several constitutional issues
on appeal, however the Court focused on substantive due process. The Court reasoned that the exclusive remedy
provision, in conjunction with the 6th Edition, removes any opportunity for Mr.
Pardo to attempt to recover for his new and distinct work-related injury. In finding the relevant portion of the
statute to be unconstitutional on this basis alone, the court did not reach the
remaining issues raised on appeal.
The Takeaway:
While
the Court of Appeals clearly indicated its decision to apply the 4th Edition
version of the Guides was limited to Mr. Pardo’s claim, the potential for other
claims to use the same “as applied” framework is less certain. Generally however, an employer/insurer should
expect a similar argument when the claimant asserts that he/she would be
entitled to a benefit under the 4th Edition that is no longer afforded or
substantially impacted by the 6th Edition as applied to his/her claim.
Kansas is not unique
in the effort to overturn the use of the 6th Edition, as other states (e.g.,
Pennsylvania, Oklahoma, and New Mexico) have had similar challenges pending in
the appellate courts. Accordingly, this
is much less likely to simply be a passing issue.