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Workers' compensation law that can have lower rewards upheld by Kansas Supreme Court

Wichita eagle logo Wichita eagle 1/9/2021 Megan Stringer, The Wichita Eagle

Jan. 8—Workers injured on the job in Kansas can continue to be evaluated for impairment following medical guidelines that might reduce the amount of their workers' compensation award, the state Supreme Court ruled.

In a decision released Friday, justices reversed a ruling from the Kansas Court of Appeals that favored Howard Johnson, but also avoided the constitutional question Johnson posed.

Johnson suffered a serious spinal cord injury while working as a delivery driver for U.S. Food Service. His workers' compensation award was nearly $47,000 less than what he would have received if the injury had occurred a year earlier.

Johnson and his attorney, Mark Kolich, argued to the Kansas Supreme Court that the significant difference in his compensation was the result of a change in the guidelines doctors follow to assess impairment. A new state law in 2013 adopted the Sixth Edition of American Medical Association Guides, rather than the previous Fourth Edition.

"The Sixth Edition ratings are lower across the board," Kolich said to justices in September. "They're not even just lower, there's testimony on the record that they are 40 to 70% lower than the earlier editions."

That disparity led Johnson and Kolich to appeal his award and ask the courts to rule unconstitutional the 2013 state law requiring use of the new guidelines.

The Supreme Court's Friday ruling upheld that state law and allowed injured workers to receive impairment ratings under the Sixth Edition.

That differs from the August 2018 decision by the Kansas Court of Appeals, which had ruled in Johnson's favor that the use of the Sixth Edition was unconstitutional.

In the case, Johnson v. U.S. Food Service, Kolich argued the new guidelines were the last straw in a series of changes to state workers' compensation that have chipped away at benefits so greatly, the system no longer operates fairly.

Essentially, the question before the Supreme Court was whether or not workers' compensation was doing its job in Kansas. According to the Friday ruling, the system in place for injured workers still operates justly and lawfully.

How did the court decide?

The Supreme Court avoided the constitutional question altogether, according to the opinion. The analysis differs from that made by the Court of Appeals.

Justices examined the plain language of the state law in question to make their decision. The language in the state law referencing the Sixth Edition can reasonably be interpreted as a guideline rather than a mandate, Justice Caleb Stegall wrote in the court's opinion.

The Sixth Edition doesn't render state law unconstitutional "because it is merely a guide which does not alter the requirement that any impairment rating be 'established by competent medical evidence,'" Stegall wrote.

The ruling rests on a phrase within the state law that says a worker's impairment must be "established by competent medical evidence."

Wording in the state law shows the Legislature intended the Sixth Edition to serve as a starting point for the medical evidence, the Supreme Court found. Therefore, a switch to the Sixth Edition does not change the legal standard for determining a worker's level of impairment.

Michelle Daum Haskins, attorney for U.S. Food Service, had argued the Sixth Edition is the newest version and represents scientific advancement.

Kolich had argued the Sixth Edition offered lower ratings and rewards to workers because of a shift in how it defined impairment.

Worker advocates have long testified against the adoption of the Sixth Edition in Kansas. The topic arose in the Legislature in 2017, when then-Secretary of State Kris Kobach argued against the Sixth Edition, too.

But defense attorneys who represent employers and insurance carriers believe the Sixth Edition is a necessary upgrade that offers less discretion to doctors, which streamlines workers' compensation and keeps the system clean of cases that don't belong there.

"The 2013 amendments merely reflect an update to the most recent set of guidelines — which serve as a starting point for any medical opinion," the Supreme Court decision reads.

Impact on work disability

The Supreme Court's decision could affect how many injured workers in Kansas have access to work disability, which covers lost wages after an incident that restricts how an employee can do their job.

Under a 2011 Kansas legislative amendment, an injured worker must meet a 7.5% impairment rating threshold for work disability. Prior to 2011, there was no threshold — any impairment would qualify workers if their wage loss was related to certain types of injury.

Critics argued that the Sixth Edition, combined with the higher threshold, make it more difficult to claim work disability and therefore access coverage for wage loss.

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