UPDATED: Supreme Court upholds workers comp changes

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(Updated to include comments from workers compensation lawyer and Kansas Chamber)

The Kansas Supreme Court on Friday dealt a defeat to a workers’ compensation case that could have potentially awarded more money to employees injured in the workplace.

The state’s highest court overturned a 2018 appeals court ruling that declared legislative changes made to the state’s workers’ compensation system unconstitutional.

In an opinion authored by Justice Caleb Stegall, the court ruled that a 2013 amendment to the workers compensation law did not change the legal standard for determining functional impairment under the law, which must still be established by medical evidence.

Seven years ago, the Kansas Legislature rewrote the law so that workplace injuries would be assessed using the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

Critics said the law was unfair to workers and would reduce compensation benefits.

Supporters said the previously used fourth edition of the AMA guide was out of date and did not take into consideration the most recent advancements of medical science.

The court said that reference to the guide’s sixth edition did not render the law unconstitutional because it was merely a guide which does not alter the requirement that an injury rating be “established by competent medical evidence.”

Jan Fisher, a workers compensation lawyer who lobbies for the AFL-CIO, said the decision was narrow in scope since it didn’t address whether the law was constitutional.

Fisher pointed out that the court ruling only found that sixth edition was just a starting point for assessing workplace injuries in awarding workers compensation claims

“I think what the decision says is that you don’t have to use the sixth or the fourth (editions),” Fisher said.

“It says you have to determine the impairment by competent medical evidence,” she said.

Fisher said she thinks that court decision will provide more flexibility in deciding the extent of workplace injuries in deciding worker compensation awards.

“It mandates flexibility,” she said. “It allows wider physician discretion.”

The court, for instance, found that the 2013 amendments reflected an update to the most recent set of medical guidelines, “which serve as a starting point for any medical opinion.”

The new sixth edition AMA guide took effect at the start of 2015. However, that same year there was an unsuccessful attempt to return to the fourth edition in the Legislature.

The issue is paramount to the Kansas business community and labor alike.

Both sides showed up in force when the Legislature in 2015 considered a bill returning to the fourth edition.

Heavy hitters such as the Kansas Chamber of Commerce, the Kansas Livestock Association and Spirit AeroSystems, among others, opposed scrapping the sixth edition.

Supporters of the sixth edition AMA guide argued that it was more up to date, incorporating medical and scientific advancements that provide a better framework for assessing permanent injuries in the workplace.

It’s a position that Kansas Attorney General Derek Schmidt staked out in his brief to the Supreme Court defending the law.

He contended it was  the prerogative of the Legislature and the governor to rework the law to adopt a new guide that reflects new medical trends.

“The Legislature listened to the debate, found the proponents of the Sixth Edition more persuasive, and reasonably concluded based on the testimony that the Sixth Edition should be adopted,” Schmidt argued in his brief to the court.

“The Court of Appeals should not have second-guessed the Legislature’s resolution of this issue.”

The Kansas Chamber of Commerce called the decision a “big victory” for the business community and the Kansas Legislature.

“Our argument all along has been that these are ‘guides’ and the Legislature has the authority to adopt, or not adopt guides as they’re published from the American Medical Association,” Kansas Chamber President and CEO Alan Cobb said.

“Physicians use the sixth edition as a reference point, as the statute says, to require ratings be ‘established by competent medical evidence,” Cobb said.

The state’s trial lawyers expressed mixed views on the court’s decision, pointing out the same flexibility that Fisher highlighted in the opinion.

“While we are disappointed that the Supreme Court did not affirm the ruling of the Court of
Appeals, today’s ruling provides clarity and appropriately restores decision making to the
physician,” Wichita attorney Phil Slape said on on behalf of the Trial Lawyers Association.

“The decision gives a doctor the leeway to use their education, training and experience to determine the seriousness of a workplace injury to a patient,” he said.

“Instead of being bound by a cookie-cutter approach imposed by big business to downplay an injury, doctors can use all guidelines available to them to determine how serious an injury is,” he said.

The court case focused on Howard Johnson, who worked for U.S. Food Service since 2002 as a delivery driver.

He suffered a neck injury when he tried to dislodge a partially frozen trailer door at work.

Johnson underwent neck surgery and later returned to work but continued to experience symptoms from the injury.

The appeals court found that under the old law using the fourth edition, Johnson would have been awarded about $61,700 to compensate for his injury.

But under the new law using the sixth edition guide, he was awarded only about $14,800.

The Kansas appeals court found that the change in law violated the Bill of Rights in the Kansas Constitution and the due process clause of the U.S. Constitution.

Created more than 100 years ago in Kansas, the workers’ compensation system sets up a procedure to compensate injured workers in exchange for giving up their right to sue their employer for tort damages.

In this case, the appeals court found the state watered down the law when it moved to the sixth edition and injured workers were no longer receiving an adequate remedy for giving up their right to sue.

“The Act has been emasculated 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,” the appeals court ruled.

“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,” the court ruled.