Kansas Supreme Court Weighs Guidelines for Compensating Injured Workers

September 21, 2020

The Kansas Supreme Court has waded into the fray over obscure medical guidelines that will determine how much money workers injured on the job can collect.

Justices on Sept. 17 heard legal arguments on Zoom over which edition of the American Medical Association guide should be used for evaluating injuries in determining compensation to injured workers in Kansas.

Critics argue that the Sixth Edition of the AMA guide adopted by the Legislature unfairly limits compensation to injured workers, reducing compensation by as much as 40 to 70 percent for work-related injuries. Supporters of it contend it better reflects technical advancements by replacing the outdated medical guidelines.

The state Supreme Court took up the case after the Kansas Court of Appeals ruled in 2018 that the Legislature went too far with its adoption of the Sixth Edition of the AMA guide, which significantly reduced permanent disability compensation. Saying the “tipping point has now been reached,” the lower court found that edition unconstitutional because it no longer provided due process for injured workers. It struck its use from the state’s Workers’ Compensation Act.

That decision was appealed to the state’s highest court. Before the court was the case of Howard Johnson III, a U.S. Food Service delivery driver, who in October 2015 injured his neck while trying to dislodge a partially frozen trailer door while on the job. His injury required surgical fusion of the cervical vertebrae, resulting in a partial permanent disability.

Workers’ compensation paid for the time he was off work and for his medical expenses, along with a $14,810 payment for his disability. But if he had been evaluated under older guidelines used prior to 2015, he would have been paid $61,713 for his disability.

Kansas began using the Sixth Edition of the AMA guidelines in 2015, and under those Johnson was considered 6% disabled. Prior to that, the state had used the Fourth Edition, under which he would be considered 25% disabled.

Michelle Haskins, the attorney representing U.S. Foods, told the court that the earlier editions are out of date and the new guidelines would bring Kansas more in conformity with the majority of states.

“Just as technology has changed and advanced so has medicine, clearly,” she said. “I would ask that the court keep Kansas in the 21st Century and affirm the use of the Sixth Edition and not send us back to using a 27-year-old, out-of-date medical text — one that is used by only a handful of states.”

Assistant Solicitor General Dwight Carswell argued the Legislature adopted the new guide based on medical testimony after finding the former edition was outdated and didn’t represent current medical standard. He told the justices that 19 states and the federal government use it.

But Mark Kolich, who represents the injured worker, argued that when Kansas adopted it they also dropped earlier language in the law that would have allowed more leeway to consider other medical evidence.

Kolich cited a doctor’s testimony that there have been no substantive technical advances in the way surgical infusions, like the one done on Johnson, are performed. The new guidelines reduced workers compensation awards by as much as 40 to 70 percent, he said.

“The Sixth Edition is not based on any science,” Kolich said. “It is a concensus of opinion of a small group or committee of doctors, most of which have an insurance company bias.”

Kolich also disputed the new guidelines were going to bring Kansas into the 21st Century.

“It has nothing to do with that,” Kolich said. “The Sixth Edition has to do with the Chamber of Commerce wanting to keep costs down in Workers Compensation. We can all make up reasons why this happened, but everybody in the know knows that is what happened.”

The Kansas AFL-CIO, Working Kansas Alliance and Kansas Trial Lawyers Association have weighed in on the case in support of Johnson. The Kansas Chamber of Commerce has taken the other side as did the Kansas Attorney General’s office, which intervened in the case to defend the guidelines adopted by the Legislature.

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