Kansas ruling declares part of comp reform package unconstitutional

Doctors assigning impairment ratings for injured workers in Kansas will resort to an older version of the American Medical Association’s guidelines after the Court of Appeals of Kansas on Friday declared that part of the state’s workers compensation reform package enacted in 2015 as unconstitutional.

Specifically, the state’s use of the Sixth Edition of the American Medical Association Guides to assign disability ratings for permanent impairment, which in a recent ruling found an injured worker to be 19 percentage points less impaired than had the previous edition been used when gauging recovery, violates due process and fails to adequately cover an injured worker, according to the ruling in Howard Johnson III v. U.S. Food Service, and American Zurich Insurance Co., filed in Topeka, Kansas.

U.S. Food Service delivery driver Howard Johnson injured his neck while trying to dislodge a frozen trailer door in October 2015, according to court records, which documented his recovery: in January 2016, he underwent neck, spinal-fusion surgery and returned to work in four months, his doctor having declared him 6% impaired.

His doctor testified that he used the Sixth Edition of the AMA Guides — in accordance with new state law at the time — in rating Johnson's permanent impairment at 6% of the whole person, noting that if he had used the Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment, which had been in effect until Jan. 1, 2015, Johnson's rating would have been 25%. A second doctor testifying agreed, according to records.

His doctor testified he believed the 25% impairment rating was “representative of Johnson's true impairment considering his loss of range of motion and his potential need for future surgery,” explaining that 20% to 30% of patients who undergo spinal fusion surgery experience “accelerated degeneration of adjacent discs in the neck within 10 years” and require additional surgery.

According to the ruling, the Sixth Edition of the AMA Guides “significantly reduced the amount of benefits an injured worker with a permanent impairment is entitled to receive and resulted in a drastic change to… (workers compensation laws)” and that the Kansas reforms “emasculated (the law) to the point that it is no longer an adequate quid pro quo for injured workers who suffer a permanent impairment as a result of an injury occurring on or after Jan. 1, 2015.”

The ruling also stated that the state’s workers comp system “no longer provides an adequate substitute remedy for the abrogation of an injured worker's common-law right to sue an employer for negligence.” The ruling stated “the Legislature went too far with the adoption of the Sixth Edition, and we agree that the Act no longer comports with due process for injured workers who sustain a permanent impairment as a result of an injury occurring on or after Jan. 1, 2015.”

Officials with U.S. Food Service and Zurich could not immediately be reached for comment.