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Use of AMA Guides Under Kansas Workers Compensation Act [Johnson v. U.S. Food Service, 427 P.3d 996 (Kan. Ct. App. 2018)]

Aaron J. Greenbaum | January 31, 2019 | PDF Version (294 KB)

Summary: The Kansas Court of Appeals took action that the legislature previously declined to take in 2015 by repealing the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (“Sixth Edition”) as controlling law. Amidst the separation of powers issues, the Kansas Court of Appeals held the use of the Sixth Edition unconstitutional on its face. The Court struck portions of K.S.A. §§ 44-510d(b)(23), 44-510d(b)(24), and 44-510e(a)(2)(B), leaving the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (“Fourth Edition”). The Court appropriately struck the Sixth Edition to maintain the Grand Bargain; however, the Kansas Supreme Court will be the final arbiter as to whether the Court of Appeals overstepped its judicial bounds. Courts, legislatures, and other national workers’ compensation proponents await the Kansas Supreme Court’s determination of the Sixth Edition’s constitutionality.

Preferred Citation: Aaron J. Greenbaum, Use of AMA Guides Under Kansas Workers Compensation Act, 58 Washburn L.J. Online 63 (2019), http://washburnlaw.edu/wljonline/greenbaum-AMAworkerscomp

I. Introduction

Kansas has maintained workers’ compensation legislation since 1911.[1] Generally, workers’ compensation provides a trade-off or Grand Bargain between employers and employees.[2] In the event of a workplace injury, an employee exchanges his or her right to recover through common-law torts, such as negligence, for a capped and quicker recovery regardless of fault.[3]

Within the last decade, the Kansas Workers Compensation Act (“Act”) has evolved and faced scrutiny from practitioners and courts alike.[4] Recently, in Johnson v. U.S. Food Service,[5] the Kansas Court of Appeals held the adoption of the AMA Guides Sixth Edition “emasculated” the Act to the point the Act no longer provides an adequate quid pro quo.[6] The decision is not currently in effect as the respondent, U.S. Food Service, and the Kansas Attorney General’s Office each filed a petition for review with the Kansas Supreme Court.[7]

The Kansas Court of Appeals appropriately held the Kansas Workers Compensation Act no longer provided an adequate substitute remedy, and properly struck the AMA Guides Sixth Edition to revert to the AMA Guides Fourth Edition.

II. Background

A. AMA Guides to the Evaluation of Permanent Impairment

The AMA Guides to the Evaluation of Permanent Impairment (“AMA Guides”) is used by doctors to help determine an impairment rating for an injured worker.[8] In scheduled injuries and body as a whole injuries with impairment, an award is determined by: average weekly wage, impairment, and the body part injured.[9] Through the AMA Guides, the impairment ratings have become a proxy for actual wage loss.[10] While the Act effectively determines disability based on the impairment rating from the AMA Guides, the two concepts are independent.[11]

The Sixth Edition defines an impairment as “a significant deviation, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease.”[12] The Sixth Edition also defines disability as “activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease.”[13]

In Kansas, permanent partial disability benefits for an injured worker represent anatomical impairment or a reduction in wage earning capacity.[14] An injured worker can obtain work disability if he or she (1) sustains a non-scheduled injury with greater than 7.5% impairment (as determined by the AMA Guides) caused solely from a work injury and (2) experiences post-injury wage loss.[15] Compared to the Fourth Edition, the Sixth Edition can provide lower impairment ratings for injuries which commonly occur on the job.[16] Thus, injured workers obtain lesser awards and fewer become eligible for work disability benefits under the Sixth Edition.[17]

B. Amendments Leading to the Sixth Edition and Challenges

The most recent overhauls to the Kansas Workers Compensation Act were in 1993 and 2011.[18] Attorneys for employers and employees conducted 2011 negotiations proposing amendments to the Act seeking an equitable result for both parties.[19] The attorneys agreed the Fourth Edition was the “best ‘fit’” for the Act.[20] These amendments narrowed injured workers’ ability to recover for injuries that occurred largely outside of work while increasing the caps as to what injured workers could recover.[21] The attorneys agreed upon the prevailing factor as the causal standard to ensuring that compensable injuries arise out of employment and amending the Act to allow for bilateral recoveries.[22]

The legislature again amended the Act in 2013, adopting the Sixth Edition for injuries occurring on or after January 1, 2015.[23] Unlike the 2011 amendments, these amendments did not result from a collaborative effort between employer and employee representatives.[24] In 2015, many proponents advocated for Senate Bill 167, which would have replaced the Sixth Edition with the Fourth Edition.[25] The bill ultimately failed.[26]

Until the summer of 2018, the Sixth Edition remained intact.[27] In Pardo v. United Parcel Service,[28] the Kansas Court of Appeals ruled the Sixth Edition was unconstitutional as applied to claimant, Francisco Pardo.[29] Most recently, in Johnson, the Kansas Court of Appeals held the Sixth Edition was facially unconstitutional because it violated due process.[30]

C. Case Description

In Johnson, Howard Johnson was working as a delivery driver for U.S. Food Service when he suffered an injury to his neck.[31] The injury occurred on October 16, 2015, when Johnson attempted to dislodge a partially frozen trailer door.[32] An MRI scan revealed “a spinal cord compression due to disc herniations at levels C5-C6 and C6-C7.”[33]

After Johnson returned to work, Dr. Harold Hess used the Sixth Edition to provide a 6% impairment rating of the whole person amounting to an award of $14,810.80.[34] Because the injury occurred after January 1, 2015, Dr. Hess used the Sixth Edition as required by law.[35] Johnson additionally obtained a rating from Dr. Hess and Dr. Preston Brent Koprivica under the Fourth Edition.[36] Both physicians suggested the Fourth Edition would likely provide a 25% impairment rating amounting to an award of $61,713.70.[37]

The medical testimony concluded neither surgical procedures or outcomes had changed since the time the Fourth Edition was the most recent guideline.[38] Johnson alleged the Act’s requirement of the Sixth Edition over the Fourth Edition was unconstitutional.[39] Specifically, Johnson claimed “the reduction in workers compensation awards diminishes or abrogates a remedy protected by due process without promoting the general welfare [of the people of the state] and without providing an adequate substitute remedy.”[40]

D. Legal Background

1. Due Process Challenge

In 1997, the Kansas Supreme Court heard constitutional challenges concerning amendments to the Act.[41] Among the challenges, workers alleged various 1993 amendments violated due process.[42] The Court incorporated a two-step test to determine whether amendments to the Act are constitutional under due process.[43]

First, the amendment must “be reasonably necessary in the public interest to promote the general welfare of the state.”[44] Second, the amendment must maintain an adequate substitute remedy under workers’ compensation in exchange for their right to pursue action under tort law.[45]

Until Pardo and Johnson, no court had declared the requirement of the Sixth Edition unconstitutional for a due process violation.[46] Because Johnson’s challenge largely echoes Pardo v. United Parcel Service, a brief explanation is appropriate.

2. Pardo v. United Postal Service

Francisco Pardo challenged the constitutionality of the Sixth Edition as applied to his circumstances on the premise that the Sixth Edition denied him substantive due process of law.[47] He sustained a second rotator cuff injury, and received a 0% impairment rating per strict interpretation of the Sixth Edition.[48] While Pardo received medical and temporary total benefits, he could not recover for permanent impairment.[49] The Kansas Court of Appeals explained that “providing compensation for permanent partial impairment is an, if not the, essential purpose of the Act.”[50] In explaining the importance of permanent impairment benefits, the court held the application of the Sixth Edition under K.S.A.§44-510d(b)(23) violated Pardo’s substantive due process rights because the Sixth Edition resulted in no permanent impairment benefits.[51]

Alternatively, in Johnson, the Kansas Court of Appeals addressed a facial constitutional challenge in the use of the Sixth Edition.[52] Thus, instead of a narrow ruling as provided in Pardo, Johnson sought a ruling declaring the Sixth Edition unconstitutional in all applications as required by statute.[53]

III. Court’s Decision in Johnson v. U.S. Food Service

While the respondent, U.S. Food Service, satisfied the low threshold to rationalize the legislative change from the Fourth Edition to the Sixth Edition, the Kansas Court of Appeals held the adoption of the Sixth Edition no longer provides an adequate substitute remedy under the Act and violated constitutional due process.[54]

A. Reasonably Necessary

The first prong has a fairly low burden, as the respondent may show any facts which may be reasonably conceived to justify the enactment of the statute.[55] Given Pardo already provided some analysis, the court did not belabor this prong.[56] This standard was met because there was legislative testimony indicating “the Sixth Edition was more medically sound than the Fourth Edition.”[57]

B. Adequate Substitute Remedy

The second prong asks whether “the Act...has been emasculated to the point where it is no longer an adequate quid pro quo.”[58] There is no bright line test followed to determine the Act’s adequacy.[59] Successful constitutional challenges are primarily as-applied cases; however, the Kansas Court of Appeals found the required use of the Sixth Edition in combination with the major amendments from 1993 and 2011 no longer provided an adequate substitute remedy for any permanently impaired worker.[60] In reaching its decision, the court evaluated the following three categories: (1) the gradual erosion of employees’ remedies, (2) the difference between the Fourth and Sixth Edition, and (3) the right to a public trial.[61]

1. Gradual Erosion

The court described the gradual erosion of employees’ remedies since the 1993 Amendments.[62] First, in 1997, the Kansas Supreme Court held the 1993 amendments did not emasculate employee rights, however, they did heavily favor employers.[63] Next, the Court asserted the 2011 amendments shifted from the right of claimants to obtain compensation for work-related injuries, to fault-based provisions available to the employer for denying compensation.[64] The court noted nine amendments from Johnson’s brief that diminish workers’ rights.[65] While Johnson conceded there are some benefits given in return, the positive changes are meaningless for those workers unable to bring a viable claim.[66] Lastly, after indicating an employer-friendly shift in the 2011 amendments, the court narrowed its scope on the Sixth Edition from the 2013 amendments.[67]

2. Pitfalls of the Sixth Edition

The court specified the significant downfalls of the Sixth Edition including the basis for measuring impairment, the limitation or lack of physician discretion, and the statutory scheme that applies the Sixth Edition.[68]

The Sixth Edition narrows the interpretation of functional impairment, rendering it inconsistent with the Act.[69] The Act provides compensation based on a worker’s disability.[70] “Disability refers to the effect of impairment on the ability to perform a job or task.”[71] Where the Fourth Edition included “work activities”—such as bending, squatting, and twisting—the Sixth Edition eliminated reference to such activities.[72] The Sixth Edition diminished a worker’s ability to recover for disability as the Act originally prescribed.[73] Because of the discrepancy, the court determined the new definition of functional impairment was inconsistent with the Act.[74]

Next, the court discussed the Sixth Edition’s lack of discretion given to medical experts.[75] For injuries occurring before January 1, 2015, the Fourth Edition allowed physicians to use their experience and knowledge with patients.[76] The court said the Sixth Edition provides “concrete impairment[s].”[77] In contrast, previous editions of the AMA Guides allowed for physician discretion; the court held the Sixth Edition removes such discretion.[78] In favoring the Fourth Edition, the court addressed the need for adjustments needed to meet evolving demands of medical science and the importance of the physician involvement in the evaluation process.[79]

The final distinction the court sets out between the Fourth Edition and Sixth Edition comes from the framework set out by K.S.A. 2015 Supp. 44-510e(a)(2)(B).[80] The court asserted the plain language of the statute actually supports a departure from competent medical evidence and the Fourth Edition to solely the Sixth Edition.[81] Thus, discretion for doctors is not only lessened in the Sixth Edition itself, but removed by the amendment to the statute.[82]

3. Right to Public Trial

Unlike previous challenges to the Act focusing on economic values, the court elaborated upon the social value given up by employees in the Grand Bargain.[83] The court addressed the historical significance of an injured person’s right to a public trial to a jury of their peers.[84] While the Grand Bargain is more often assessed in economic terms, sacrificing the right to a public trial cannot be quantified.[85] Despite the inability to quantify an individual’s right to a public trial, the court cites Death of a Salesman, explaining there is a social value that must be incorporated in the due process analysis.[86]

Because of the lack of physician discretion, redefined activities of daily living, reduced benefits for the injury incurred, and lost right to a public trial, the court held the Act had been emasculated to the point it no longer provided an adequate quid pro quo for injured workers suffering a permanent impairment and disability on or after January 1, 2015.[87]

IV. Commentary

A. Procedural Posture: The Case Continues

The Kansas Court of Appeals published the opinion on August 3, 2018 and the respondent, U.S. Food Service, and Attorney General filed petitions for review with the Kansas Supreme Court.[88] The Kansas Court of Appeals’ decision is not binding because the case is not final and may be subject to review.[89]

B. Petition for Review

Stated succinctly, the Attorney General argues (1) the adoption of the Sixth Edition is appropriate because it is based on the most recent medical knowledge, (2) the Court of Appeals inappropriately compared the Sixth Edition with the Fourth Edition, and (3) the Kansas Court of Appeals misconstrued the Act.[90]

1. Most Recent Medical Knowledge

The first challenge has three components: (a) the legislature did not revoke a remedy under the Kansas Bill of Rights, (b) the legislature should determine whether a remedy has been revoked, and (c) the claimant does not meet the burden of the Salerno test.[91]

a. Section 18 of the Kansas Bill of Rights[92]

The Attorney General alleges the Sixth Edition does not implicate Section 18 of the Bill of Rights because the remedy provided now is based on the most recent science.[93] The Attorney General essentially argues that a due process analysis is unwarranted.[94] However, the Kansas Supreme Court has previously ruled that “recovery for loss of earning power is a basic purpose of the act.”[95] Slashing impairment ratings and removing a medical expert’s discretion deprives injured workers the ability to restore lost earning capacity.[96] Thus, Johnson rightfully raises the challenge under Section 18 of the Kansas Bill of Rights.[97]

b. Court of Appeals as Fact Finder

Next, the Attorney General asserts that the legislature shall act as the fact finder to determine whether the Fourth or Sixth Edition is more medically accurate.[98] Thus, the petition for review alleges the Court of Appeals was not in a position to address the medical accuracy of the Sixth Edition.[99] However, even if the medical accuracy is a question of fact, determining a statute’s constitutionality is a role for the court.[100] Where the legislature has sworn to abide by the Kansas Constitution, the Kansas Court of Appeals functions as a check to ensure constitutional rights were not violated.[101]

Johnson did not determine the Sixth Edition unconstitutional on the basis of medical accuracy.[102] Rather, the Kansas Court of Appeals acknowledged a degree of medical accuracy under the first prong of the Injured Workers due process test.[103] However, under the second prong, the Sixth Edition did not comport with the Act, leaving an inadequate substitute remedy because of reduced economic recovery, loss of right to a public trial, loss of right to receive a rating which includes physician discretion, and the loss of the right to receive a rating based on loss of daily living activities which includes work tasks.[104]

c. Salerno Test: Analyzing a Facial Constitutional Challenge

Among its more interesting challenges, the Attorney General makes a facial constitutional challenge, requiring the claimant to demonstrate “there are no situations in which the Sixth Edition is more medically accurate than the Fourth Edition.”[105] Stating the Sixth Edition is more medically accurate than the Fourth Edition is somewhat misleading. While the court acknowledged there was legislative testimony supporting a shift to the Sixth Edition, at no point does the court acknowledge the Sixth Edition is medically superior to the Fourth Edition.[106] Additionally, this analysis was discussed under the first prong of the due process analysis.[107] The more important questions proposed are: is a facial constitutional challenge warranted, and should the Court analyze the facial challenge differently than an as-applied challenge?[108]

Underlying procedural flaws combined with the substantive rights violated provide a basis for facial constitutional challenges.[109] Previously, Pardo challenged the procedural flaws of the Sixth Edition.[110] Specifically, Pardo challenged the 0% impairment rating and lack of physician discretion as a violation of his substantive rights under Section 5 and Section 18 of the Kansas Bill of Rights.[111] Here, Johnson addressed similar procedural flaws within the Sixth Edition.[112] These flaws, the redefined activities of daily living and the lack of physician discretion, render the Sixth Edition inconsistent with the Act.[113]

The Kansas Court of Appeals addressed these flaws, but never explicitly as the basis for a facial challenge.[114] These procedural flaws apply to all claimants, but there is no way to anticipate the harm to each claimant.[115] The procedural harms from the Sixth Edition amount to a substantive due process claim, in that the Act no longer provides an adequate substitute remedy for the abrogation of right to trial and right to remedy.[116]

This challenge pushed further than the as-applied challenge set out in Pardo, and remains distinguishable from other constitutional challenges that incorporate the Salerno test, which requires the challenger to prove that there is no set of circumstances where the statutory amendment would be constitutionally valid.[117] The Salerno test was applied in Injured Workers, but under an equal protection challenge.[118] Recognizing the procedural flaws applicable to all claimants, the due process framework addressed by Injured Workers shall be the appropriate framework for a facial constitutional challenge.[119] While the test has not been previously utilized for a facial challenge, the circumstances lend themselves to a facial challenge.[120]

2. Sixth Edition to Common Law

The Attorney General further asserts that the Court of Appeals inappropriately compared the Sixth Edition to the Fourth Edition instead of to a remedy under common law.[121] The Attorney General suggests that where a worker suffers no wage loss as a result of a permanent injury, there would be no economic damages under common law as the future surgeries would remain too speculative.[122] To support this claim, he points to Johnson’s situation as an injured worker that returned to his employer at the same rate.[123]

Under an as-applied challenge, Johnson would have maintained a case or controversy because he suffered structural damage to his spinal cord.[124] While he recovered neurologically, his spine has been “permanently structurally changed,” requiring a cervical fusion changing the anatomic makeup of his spine.[125] Further, Johnson had to accommodate his injury and altered his job duties to maintain his employment.[126] Given the historical scheme of the Act, comparing the Sixth Edition to a common-law remedy would be far more speculative than a comparison to the Fourth Edition.[127] The AMA Guides themselves were adopted to allow for administrative ease.[128] There is no scientific support for a reduced impairment rating for cervical fusions from 25% to the body as a whole (Fourth Edition), to 6% to the body as a whole (Sixth Edition).[129] The court may compare Sixth Edition awards to Fourth Edition awards to assess harm to injured workers.[130] The comparison of the Sixth Edition to the Fourth Edition instead of to a common-law remedy is appropriate because the Fourth Edition defined impairment to include work activities and maintained doctor’s discretion.[131]

3. Statutory Interpretation

Lastly, the Attorney General argues the court inappropriately interpreted the statute as removing competent medical evidence.[132] The plain reading of the statute requires the combination of competent medical evidence with the Fourth Edition.[133] Then, for the convenience of potential severability, the legislature added the provision requiring injuries on or after January 1, 2015, to use the Sixth Edition.[134]

While the Kansas Court of Appeals interpreted the statute as lacking the requirement of competent medical evidence with the Sixth Edition, the Kansas Supreme Court could interpret the statute in the alternative.[135] The Attorney General correctly identifies there is a presumption of constitutional validity.[136] The Attorney General suggests that with the presumption of validity, the correct reading would incorporate competent medical evidence alongside the Sixth Edition.[137] However, the true problem is not the statute’s application of competent medical evidence, but the lack of physician discretion in the Sixth Edition.[138]

V. Conclusion

The adoption of the Sixth Edition in 2013 significantly reduced permanent disability benefits and altered the ability to obtain work disability. After Pardo provided a road for as-applied challenges to chip away at the Sixth Edition, Johnson went for the knock out. The decision is not binding at this time because the respondent and Attorney General have filed petitions for review.

The petitions suggest that under the second prong of Kansas’ due process analysis, the Sixth Edition provides an adequate substitute remedy for the common-law right to sue in tort. However, the Sixth Edition: (1) limits physician discretion; (2) redefines activities of daily living, eliminating work activities; and (3) reduces benefits for injuries. Further, the worker has also given up the right to a public jury trial. Because of all these factors, the court appropriately held the Act had been emasculated to the point it no longer provided an adequate quid pro quo for injured workers, rendering the required use of the Sixth Edition unconstitutional.


1. Johnson v. U.S. Food Serv., 427 P.3d 996, 1003 (Kan. Ct. App. 2018). [Return to Text]

2. Emily A. Spieler, (Re)Assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017, 69 Rutgers U. L. Rev. 891, 893 n.4 (2017). [Return to Text]

3. Pardo v. United Parcel Serv., 422 P.3d 1185, 1194–95 (Kan. Ct. App. 2018) (quoting Injured Works of Kansas v. Franklin, 942 P.2d 591, 620 (Kan. 1997)). [Return to Text]

4. See generally S.B. 167, 2015 Committee on Commerce (Kan. 2015) (minutes); H.B. 2059, 2017 Committee on Commerce, Labor and Economic Development (Kan. 2017) (minutes and testimony); Pardo, 422 P.3d 1185; Johnson, 427 P.3d 996. Most recently, 2013 statutory amendments have been struck down by the Kansas Court of Appeals on an as-applied constitutional challenge. Pardo, 422 P.3d at 1203–04. The most notable 2013 amendment involved the shift in measuring permanent impairment from the Fourth Edition to the Sixth Edition. Id. at 1193–94. [Return to Text]

5. 427 P.3d 996. [Return to Text]

6. Johnson, 427 P.3d at 1013. [Return to Text]

7. See generally Kan. Sup. Ct. Rules, Rule 8.03(k)(1); Petition for Review, Johnson v. U.S. Food Serv., (Kan. Ct. App. 2018) (No. 17-117725-S) [hereinafter Respondents Petition for Review] (filed by Michelle Daum Haskins on August 30, 2018); Petition for Review, Johnson v. U.S. Food Serv., 427 P.3d 996 (Kan. Ct. App. 2018) (No. 17-117725-S) [hereinafter Intervenor Petition for Review] (filed by the Kansas Attorney General’s Office on September 4, 2018). [Return to Text]

8. Jan Fisher, Committee Minutes & Testimony, H.B. 2059, at 1 (Kan. 2017), http://kslegislature.org/li/b2017_18/committees/ctte_h_cmrce_lbr_1/documents/testimony/20170131_02.pdf [https://perma.cc/REX6-YNZJ]. The AMA Guides serve “as the standard for defining impairment in most workers’ compensation, motor vehicle casualty and personal injury cases.” Christopher R. Brigham, AMA Guides - Sixth Edition: Evolving Concepts, Challenges and Opportunities, Impairment Res., at 3 (2011), https://www.6thedition.com/Training/SixthEditionSyllabus2008-01-23.pdf [https://perma.cc/6PDG-4VKW]. [Return to Text]

9. See e.g., Kan. Stat. Ann. § 44-510d (2018). States vary in application of AMA Guides in terms of edition used and the amount of deference to doctors in determining an impairment rating. Fisher, supra note 8, at 5. [Return to Text]

10. Emily Spieler, Before the Subcommittee on Worforce Protectins, Committee on Educaton and Labor, U.S. House of Representatives, at 6 (2010) https://edlabor.house.gov/imo/media/doc/documents/111/pdf/testimony/20101117EmilySpielerTestimony.pdf>https://edlabor.house.gov/imo/media/doc/documents/111/pdf/testmony/20101117EmilySpielerTestimony.pdf [https://perma.cc/9XUU-GVYZ]; Fisher, supra note 8, at 4. [Return to Text]

11. Fisher, supra note 8, at 4. Impairment is loss of function, for example, lessened grip strength. Id. Disability is the ability to perform a task, for example, the lessened ability to use a screwdriver on the job. Id. [Return to Text]

12. Robert D. Rondinelli et al., AMA Guides to the Evaluation of Permanent Impairment 5 (6th ed. 2008). [Return to Text]

13. Id. [Return to Text]

14. Kan. Stat. Ann. § 44-510d (2018). [Return to Text]

15. Kan. Stat. Ann. § 44-510e(a)(2)(C) (2018) (“[T]he extent of work disability is determined by averaging together the percentage of post-injury task loss demonstrated by the employee to be caused by the injury and the percentage of post-injury wage loss demonstrated by the employee to be caused by the injury.”). The threshold increases to equal to or greater than 10% when the injury includes pre-existing impairment. Id. Disability benefits represent wages injured workers are incapable of earning because of permanent injury. See Fisher, supra note 8, at 4–5. [Return to Text]

16. Brent P. Koprivica, Workers’ Compensation Senate Bill 167 Delivered Feb. 18, 2015 Senate Commerce Committee, Minutes for SB 167 - Committee on Commerce, at 3–8 (2015) [hereinafter Koprivica Written Testimony], http://kslegislature.com/li_2016/b2015_16/committees/ctte_s_cmrce_1/documents/testimony/20150218_04.pdf [https://perma.cc/KCC9-ZTKG]. Carpal tunnel syndrome and other upper extremity injuries, operated backs and necks, and second time shoulder operations are unable to claim work disability under the Sixth Edition where they previously could under the Fourth Edition because the threshold is 7.5%. Id. at 2–8. [Return to Text]

17. Id. at 8. After expressing concerns about Kansas’ adoption of the prevailing factor, Dr. Koprivica testified with concerns about the Sixth Edition:

Now, the AMA Guides 6th Edition comes along and, without any science to back it up, drastically changes the calibration as to how values are assigned in cases that are still considered compensable. For several impairments, the AMA Guides 6th Edition, only allow for the assignment of permanent impairment once in a person’s lifetime, effectively eliminating a remedy altogether. The AMA Guides 6th Edition also removes any human judgment or independent thinking on the part of the doctor which, in turn, completely dehumanizes the injured worker.

Id. at 2. [Return to Text]

18. Johnson v. U.S. Food Serv., 427 P.3d 996, 1010 (Kan. Ct. App. 2018). [Return to Text]

19. Id. at 1002. [Return to Text]

20. Fisher, supra note 8, at 2; Brief of Appellant at 8, Johnson v. U.S. Food Serv., 427 P.3d 996 (Kan. Ct. App. 2018) (No. 17-117725-A), 2017 WL 4077203, at *8 [hereinafter Brief of Appellant]. Jeff Cooper, an attorney involved in the 2011 negotiations, submitted written testimony:

One of the very first items negotiated was whether the Kansas Workers Compensation Act would utilize the 4th Edition of the AMA Guides. Everyone present at the meeting agreed that the 4th Edition worked well and that there was no need to change to any other edition, specifically, the 6th Edition. The express intent of the compromise was that all changes made in 2011 would be based on the continued use of the 4th Edition of the AMA Guides.

Jeff Cooper, Written Testimony, Minutes for SB 167 - Committee on Commerce, at 1 (Kan. 2015) [hereinafter Cooper Written Testimony], http://kslegislature.com/li_2016/b2015_16/committees/ctte_s_cmrce_1/documents/testimony/20150218_18.pdf [https://perma.cc/7APQ-XHME]. [Return to Text]

21. Johnson v. U.S. Food Serv., 427 P.3d 996, 1009 (Kan. Ct. App. 2018). [Return to Text]

22. Id. at 1005; Paula Greathouse & Larry Karns, Adoption of Prevailing Factor Standard for Compensability, in Kansas Workers Compensation § 1.4 (Tom Hammond, et al. eds., 5th ed. 2015) (the 2011 amendments reversed “a decision that had limited bilateral injuries to scheduled injuries rather than injuries to the body as a whole” allowing injured workers higher recovery). In 2011, the Kansas Workers Compensation Act changed requirements for an accident to arise out of a workers’ employment. Nam Le v. Meats, 364 P.3d 571, 574 (Kan. Ct. App. 2015). Previously, an aggravation of a preexisting condition was sufficient to prove an accident had arisen out of the employment. Id. After May 15, 2011, an employee was required to prove his accident was the prevailing factor causing his injury, medical condition and impairment, and/or disability, if any. Id. Aggravations alone were not sufficient to prove the accident arose out of the employment. Id. [Return to Text]

23. Johnson, 427 P.3d at 1002; Brief of Appellant, supra note 20, at 8. The adoption of the Sixth Edition is as follows:

Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, shall be determined by using the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.

Kan. Stat. Ann. § 44-510d(b)(23) (2018) (Statutes with similar language adopting the Sixth Edition for injuries occurring on and after January 1, 2015, include Kan. Stat. Ann. §§ 44-510(e)(a)(2)(B), 44-510d(b)(24) (2018)). [Return to Text]

24. Cooper Written Testimony, supra note 20, at 1; Keith Mark, Written Testimony, Minutes for SB 167 – Committee on Commerce, at 1–2 (Kan. 2015), http://kslegislature.com/li_2016/b2015_16/committees/ctte_s_cmrce_1/documents/testimony/20150218_08.pdf [https://perma.cc/L4J6-54JY]. [Return to Text]

25. Johnson, 427 P.3d at 1007. [Return to Text]

26. Id. at 1008. “Litigators on both sides–representing claimants and representing employers–testified in support of the bill.... Opposition to the bill came from other business owners and business groups around the state.” Id. at 1007. [Return to Text]

27. Pardo v. United Parcel Serv., 422 P.3d 1185, 1190 (Kan. Ct. App. 2018). [Return to Text]

28. 422 P.3d 1185 (Kan. Ct. App. 2018). [Return to Text]

29. Pardo, 422 P.3d at 1202 (holding that “as applied to Pardo, the use of the Sixth Edition to determine impairment ratings under K.S.A. 2014 Supp. 44-510d(b)(23) violates Pardo’s substantive due process rights and is, therefore, unconstitutional”). The Kansas Court of Appeals identified two fundamental rights within the Kansas Constitution: the right to a remedy in due course of procedure and the right to a trial by jury. Id. at 1194. As a result, the court proceeded by applying the Injured Workers of Kansas test to determine whether the 2013 amendment unconstitutionally infringed Pardo’s rights. Id. at 1195. [Return to Text]

30. Johnson, 427 P.3d at 1013. [Return to Text]

31. Id. at 1000. [Return to Text]

32. Id. [Return to Text]

33. Id. (“Dr. Hess diagnosed Johnson with cervical myeloradiculopathy.”). In January 2016, Dr. Hess performed a cervical fusion surgery removing disc material and replacing the material with bone from a cadaver. Id. Johnson continued to experience symptoms in his neck after he was released for work on April 15, 2016. Id. Thereafter, he modified his duties to his job. Id. at 1000. [Return to Text]

34. Id. at 1001. [Return to Text]

35. Id. [Return to Text]

36. Johnson, 427 P.3d at 1001–02. [Return to Text]

37. Id. at 1000–01 (“[T]he 25% impairment rating was representative of Johnson’s true impairment considering his loss of range of motion and his potential need for future surgery.”). [Return to Text]

38. Id. at 1001. Dr. Hess testified that there have been no medical or scientific advancements warranting lower impairment ratings. Id. He explained that with the exception of cervical plates there have been no changes to surgical technique or expected outcomes in cervical fusions since he began performing cervical fusions in 1988. Id. [Return to Text]

39. Id. at 1002 (alleging K.S.A. 2015 Supp. 44-510e’s required use of the Sixth Edition violates the Kansas Constitution and the Fourteenth Amendment of the United States Constitution). [Return to Text]

40. Id. [Return to Text]

41. Injured Workers v. Franklin, 942 P.2d 591, 596 (Kan. 1997) (challenging five amendments and the Kansas Workers Compensation Act as a whole); Nicole M. Zomberg, Workers Compensation Law: Constitutionality of the 1993 Kansas Workers Compensation Act, 37 Washburn L.J. 829, 829 (1998) (addressing the plaintiff’s challenge that the Act no longer provided a quid pro quo). [Return to Text]

42. Franklin, 942 P.2d at 603. “The specific provisions scrutinize a more stringent notice requirement, treating a shoulder as a scheduled injury rather than a general bodily disability, a retirement benefit offset against disability compensation and a reduction in the contingent fee percentage to be collected by the injured worker’s lawyer.” Brief of Appellant, supra note 20, at 13. [Return to Text]

43. Johnson, 427 P.3d at 1005 (citing Franklin, 942 P.2d at 603). The Court quoted a previous Kansas Supreme Court case:

The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished....The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point it is no longer a viable and sufficient substitute remedy.

Id. at 1004 (quoting Bair v. Peck, 811 P.2d 1176, 1188, 1191 (Kan. 1991)). [Return to Text]

44. Franklin, 942 P.2d at 603. [Return to Text]

45. Johnson, 427 P.3d at 1005. In Injured Workers, Justice Allegrucci dissented: “I am unable to determine at what point, if any, the majority would conclude the legislature went too far in altering a substitute remedy.” Franklin, 942 P.2d at 623–24 (Allegrucci, J., dissenting). [Return to Text]

46. See Johnson, 427 P.3d at 1000. The Pennsylvania Supreme Court held an amendment to their Workers Compensation Act unconstitutional as it violated the non-delegation doctrine. Protz v. Workers’ Comp. Appeal Bd., 161 A.3d 827, 838 (Pa. 2017). The amendment prescribed a physician shall determine the degree of impairment “pursuant to the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment.’” Id. at 839 (emphasis added) (holding the legislature cannot pass off de facto control over matters of policy). In the alternative, the Oklahoma Supreme Court upheld a statute involving the AMA Guides Sixth Edition under constitutional challenges including the non-delegation doctrine, procedural due process, substantive due process, and access to courts. Hill v. Am. Med. Response, 423 P.3d 1119, 1139 (Okla. 2018), reh’g denied (July 25, 2018). The concurrence and dissent in part by Justice Kauger cautions the court to “not put our heads in the sand and disregard the clear evidence developed in this case.” Id. at 1143 (Kauger, J., dissenting in part and concurring in part) (“I have been reluctant to engage in a discussion of the Grand Bargain in previous decisions.”). Justice Kauger acknowledges the strength of the legal and medical experts and the need to retain their discretion in the workers’ compensation system:

The strength of the system is based on the adjudicators and the physicians who are experts, and well versed in the field of disability medicine and law. The system is out of balance, and makes robots out of the very highly qualified individuals who have been charged with the responsibility of administering the system. The AMA Guides should be relegated to a “guide” and nothing more. The Physician Advisory Committee is in the best position to reconsider whether the Sixth Edition should be adopted. To the extent the Sixth Edition is inconsistent with the AWCA, it should be disregarded.

Id. at 1143–44. [Return to Text]

47. Pardo v. United Parcel Serv., 422 P.3d 1185, 1194 (Kan. Ct. App. 2018) (“Specifically, he argues that K.S.A. 2014 Supp. 44-510d(b)(23)’s requirement that the Sixth Edition be used to calculate his award and K.S.A. 2014 Supp. 44-501b(d)’s exclusive remedy mandate violate § 18 of the Kansas Constitution Bill of Rights and the Fourteenth Amendment to the United States Constitution.”). Courts prefer to rule on as-applied constitutional challenges to keep from overreaching the bounds of judicial competence. See Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915, 946 (2011). [Return to Text]

48. Pardo, 422 P.3d at 1190. Pardo argued the Sixth Edition undermines the Act because it only allows for an award of permanent partial impairment once in an individual’s lifetime for a rotator cuff injury. Brief of Appellant, supra note 20, at 33. Under the Sixth Edition, for a rotator cuff injury, partial thickness tear, a claimant can receive impairment upon reduced range of motion instead of the diagnosis model which provided only one impairment. Supplemental Brief of Appellees at 8, Pardo v. United Parcel Serv., 422 P.3d 1185 (Kan. Ct. App. 2018) (No. 16-116842-A), 2018 WL 822263, at *8. Respondents contended that Pardo elected not to receive such a rating because taking the zero impairment rating bolstered their constitutional challenge. Id. at 7. Instead of obtaining an impairment rating under a range of motion evaluation under the Sixth Edition, Pardo asserted the Fourth Edition provides a ten percent impairment rating under a range of motion evaluation. Brief of Appellant, supra note 20, at 9. [Return to Text]

49. Pardo v. United Parcel Serv., No. 1,073,268, 2016 WL 6584728, at *5 (Kan. Work. Comp. App. Bd. Oct. 26, 2016). [Return to Text]

50. Pardo, 422 P.3d at 1200. The Court explained:

We have heretofore stated that recovery for loss of earning power is a basic purpose of the act. In accordance with this principle we conclude a workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment. Stated more distinctly, he should recover his functional disability.... [C]ompensation for permanent partial impairment is a necessary and essential component of the Act’s quid pro quo, elimination of compensation for permanent partial impairment simply cannot be permissible even when the worker receives some compensation to cover his or her medical bills and temporary total disability benefits.

Id. at 1200–01 (citations omitted). [Return to Text]

51. Id. at 1202. The quid pro quo supporting the Act’s constitutionality sets out that injured workers have the opportunity to obtain awards for permanent impairment if the facts warrant such recovery. Id. Thus, the court determined Pardo’s permanent partial impairment, a second rotator cuff injury, warranted benefits that were not provided by the Sixth Edition. Id. The term “permanent partial impairment” is used for consistency with the court’s language; however, the term intended by the court was likely “permanent partial disability” rather than “permanent partial impairment.” See id. at 1200. [Return to Text]

52. Johnson v. U.S. Food Serv., 427 P.3d 996, 1000 (Kan. Ct. App. 2018). [Return to Text]

53. Id. at 1013–14; Fallon, supra note 47 at 923. [Return to Text]

54. Johnson, 427 P.3d at 1008. [Return to Text]

55. Id. (citing Pardo, 422 P.3d at 1196). [Return to Text]

56. Id. [Return to Text]

57. Id. (citing Pardo, 422 P.3d at 1196). The Court in Pardo did not appear convinced that the Sixth Edition was more medically sound than the Fourth Edition; however, it gave deference to the legislature because of the low burden of proof required in the first prong. Pardo, 422 P.3d at 1197 (“[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”). [Return to Text]

58. Johnson, 427 P.3d at 1009 (The premise for the question derives from the Act’s constitutionality in that it “originally provided an adequate substitute remedy for the abrogation of an employee’s common-law right to sue an employer for negligence.”). [Return to Text]

59. See id. at 1004. Injured Workers and Pardo each quote the following text:

In considering the adequacy of the quid pro quo of comprehensive legislation, which substitutes a statutory remedy for one that formerly existed at common law, and its sufficiency to support subsequent amendments or modifications which diminish the substitute remedy originally granted, no hard and fast rule can apply to all cases. It is obvious that the needs and goals of comprehensive legislation such as the Workers Compensation Act, the Kansas Automobile Injury Reparations Act and the Health Care Provider Insurance Availability Act will change with the passage of time and the needs of a fluctuating society. It would take the wisdom of Solomon to devise comprehensive remedial legislation, such as that now before us, which would never need fine tuning, change, or modification. The Act is a piece of ongoing legislation which will, of necessity, require continuous modification to accomplish its goals.

Bair v. Peck, 811 P.2d 1176, 1190 (Kan. 1991). [Return to Text]

60. Johnson, 427 P.3d at 1013. [Return to Text]

61. Id. at 1009–14. [Return to Text]

62. Id. at 1009. In 1997, the Kansas Supreme Court held the 1993 amendments did not emasculate employee rights; however, they heavily favored employers. Id. [Return to Text]

63. Id. The court described gradual erosion of the rights under the Act in exchange of common-law rights as that of “death by a thousand paper cuts.” Id. (“What is the last slice that tips the balance from a fair exchange of rights and remedies to one that is unconstitutionally inadequate from the injured worker’s point of view?... [T]he tipping point has now been reached with the adoption of the Sixth Edition.”). [Return to Text]

64. Id. At this point in the opinion, Judge McAnany lists various limiting amendments to employees including horseplay, drug testing, and the prevailing factor. Id. [Return to Text]

65. Id. at 1005–07; Brief of Appellant, supra note 20, at 17–22. [Return to Text]

66. Johnson, 427 P.3d at 1007; Brief of Appellant, supra note 20, at 22. [Return to Text]

67. Johnson, 427 P.3d at 1010. [Return to Text]

68. Id. [Return to Text]

69. Id. Professors William Rich and Jan Fisher explained that an impairment rating is a “consensus driven percentage estimate of loss” based upon how an injury effects an injured worker’s ability to perform activities of daily living. Brief of Amicus Curiae Professors William Rich and Jan L. Fisher at 9–10, Pardo v. United Parcel Serv., 422 P.3d 1185 (Kan. Ct. App. 2018) (No. 16-116842-A), 2017 WL 4647758, at *9–10 (citing Rondinelli et al., supra note 12, at 5) [hereinafter Brief of Amicus Curiae]. “The 6th Edition acknowledges that the whole person impairment percentages are based on ‘normative judgments that are not data driven’ and still ‘await future validation.’” Id. at 12. [Return to Text]

70. Johnson, 427 P.3d at 1010. [Return to Text]

71. Id. [Return to Text]

72. Id. at 1011. The Sixth Edition describes activities of daily living as “bathing, showering, dressing, eating, functional mobility, personal hygiene, toilet hygiene and management, sleep, and sexual activity.” Id. The Sixth Edition eliminates activities commonly associated with work that are in the Fourth Edition: “tasks with physical demands associated with work such as standing, walking, bending, squatting, twisting, climbing, carrying, or lifting.” Id. (citing Am. Med. Ass’n, Guides To The Evaluation Of Permanent Impairment 317 (4th ed. 1993) [hereinafter Fourth Edition]). [Return to Text]

73. Id. Redefining activities of daily living, the Sixth Edition reduced impairment ratings, and in turn reduced disability awards. Id. at 1012. The court claimed 40% to 70% reductions in impairment ratings, moving from the Fourth Edition to the Sixth Edition. Id. The Attorney General’s Office disputes these figures. Intervenor Petition for Review, supra note 7, at 2. However, Johnson included this evidence in his appellant brief. Brief of Appellant, supra note 20, at 29 (“Since impairment ratings have a direct correlation to the amount of compensation to be received, all injured workers can reasonably expect much less money for their residual impairment.”). In legislative history, Dr. Koprivica actually cites a 72% reduction in the most common injuries that he treats. Koprivica Written Testimony, supra note 16, at 8. Since 1992, his practice has conducted independent medical evaluations in work injuries. Id. at 1. He is considered one of the leading experts in Kansas regarding the AMA Guides. Id. As a result of these injuries impairment ratings under the Sixth Edition, injured workers often fail to meet the threshold to qualify for work disability. Id. at 8. [Return to Text]

74. Johnson, 427 P.3d at 1011. Part of the movement towards the changes in the Sixth Edition was greater consistency among impairment ratings. Controversy Over the AMA Guides, Sixth Edition, Workers Comp Matters (Sep. 28, 2018) (accessed using Spotify). However, similar to the analysis in Johnson, Alan Pierce addressed this consistency as a flaw because the Sixth Edition definition for impairment does not incorporate occupational demands. Id. He asserts this is particularly problematic in states that dictate benefits based on impairment ratings. Id. [Return to Text]

75. Johnson, 427 P.3d at 1011 (citing Fourth Edition, supra note 72, at 3). [Return to Text]

76. Id. at 1012 (citing Fourth Edition, supra note 72, at 3). [Return to Text]

77. Id. at 1011. Professor Emily Spieler, of Northeastern University School of Law, explained to the U.S. House of Representatives the lack of discretion in terms of an effort to produce objective findings:

[T]he Sixth Edition focuses on objective evidence and pathology, rejects subjective symptoms, downgrades the role of treating physicians who would be most familiar with the individual’s functional capacity, and, as noted above, restricts the effect of any assessment of functional loss. Rater discretion is reduced by the diagnosis-based grid methodology, which narrows the bands of available WPI [whole person impairment] ratings as well as by the insistence on objective findings. Although this has been characterized as increasing ‘fairness,’ it in fact may have the result of lowering the WPI rating, without any consideration for the effects of these changes on injured individuals.

Developments in State Workers’ Compensation Systems: Hearing Before the Subcomm. on Workforce Protections of the H. Comm. on Education & Labor, 111th Cong. 12 (2010), https://archive.org/details/gov.gpo.fdsys.CHRG-111hhrg61993/page/n11 [https://perma.cc/RNM5-6VHZ]. [Return to Text]

78. Johnson, 427 P.3d at 1012. Alan Pierce described the movement to the Sixth Edition as a new paradigm shift because of a new board of editors, a new methodology that lacks transparency, and a wholesale reduction of disability ratings. Controversy Over the AMA Guides, Sixth Edition, supra note 74. [Return to Text]

79. Johnson, 427 P.3d at 1012. [Return to Text]

80. Id. [Return to Text]

81. Id.

The extent of permanent partial general disability shall be the percentage of functional impairment the employee sustained on account of the injury as established by competent medical evidence and based on the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, based on the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.

Johnson, 427 P.3d at 1012 (citing Kan. Stat. Ann. § 44-510e(a)(2)(B) (2018)). [Return to Text]

82. Id. [Return to Text]

83. Thomas A. Robinson, Kansas Court Strikes Down Use of AMA Guides 6th Ed., WorkComp Writer (Aug. 3, 2018), http://www.workcompwriter.com/kansas-court-strikes-down-use-of-ama-guides-6th-ed/ [https://perma.cc/YG26-HQYJ]. [Return to Text]

84. Johnson, 427 P.3d at 1013. [Return to Text]

85. See id. [Return to Text]

86. Id. [Return to Text]

87. Id. [Return to Text]

88. Intervenor Petition for Review, supra note 7, at 1. [Return to Text]

89. Kan. Sup. Ct. R. 8.03(k)(1) (“Pending the Supreme Court’s determination on the petition for review and during the time in which a petition for review may be filed, the Court of Appeals decision is not binding on the parties or on the district courts.”). [Return to Text]

90. Intervenor Petition for Review, supra note 7, at 1. Respondent’s attorney Michelle Haskins made similar arguments emphasized that a lesser figure provided under the Sixth Edition does not render the Act unconstitutional. Respondents Petition for Review, supra note 7. [Return to Text]

91. Intervenor Petition for Review, supra note 7, at 6–9. [Return to Text]

92. Kan. Const. Bill of Rights § 18 (“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”). [Return to Text]

93. Intervenor Petition for Review, supra note 7, at 6.

Advances in medical knowledge and treatment may affect the degree to which a person is determined to be impaired based on a particular injury. Acknowledging those advances by adopting current medical understanding on the extent of a person’s impairment does not amount to the Legislature modifying or eliminating a remedy for purposes of Section 18.

Id. [Return to Text]

94. See id. [Return to Text]

95. Anderson v. Kinsley Sand & Gravel, Inc., 558 P.2d 146, 150 (Kan. 1976) (“[W]e conclude a workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment.”). [Return to Text]

96. See Johnson v. U.S. Food Serv., 427 P.3d 996, 1012 (Kan. Ct. App. 2018). [Return to Text]

97. See Injured Workers of Kansas v. Franklin, 942 P.2d 591, 622 (Kan. 1997). In the modification of a common-law remedy, the Kansas Supreme Court provided a more stringent standard under due process to protect the right to a remedy under Section 18 of the Kansas Bill of Rights. Bair v. Peck, 811 P.2d 1176, 1188 (Kan. 1991). [Return to Text]

98. Intervenor Petition for Review, supra note 7, at 9. [Return to Text]

99. Id. [Return to Text]

100. Johnson, 427 P.3d at 1002 (citing Solomon v. State, 364 P.3d 536, 544 (2015)). The Attorney General argues that because the Sixth Edition is the most recent edition, it also contains the best medical knowledge. Intervenor Petition for Review, supra note 7, at 7. While the Kansas Court of Appeals has acknowledged the Sixth Edition survives a low standard of scrutiny, it at no point concedes the Sixth Edition contains the best medical knowledge. Pardo v. United Parcel Serv., 422 P.3d 1185, 1197 (Kan. Ct. App. 2018). Pardo calls this into question, citing the Sixth Edition because “impairment ratings are not based on objective data [and] [t]he whole person impairment ratings are based on ‘normative judgment that are not data driven’ that still ‘await future validation.’” Id. at 1197 (citing Rondinelli et al., supra note 12, at 6). [Return to Text]

101. Johnson, 427 P.3d at 1002. [Return to Text]

102. Id. [Return to Text]

103. Id. at 1008 (citing legislative history that supports the Sixth Edition as more medically sound, justifying the amendment to the Act). Evidence cut both ways as to the medical accuracy of the Sixth Edition with the court referencing Dr. Koprivica, Dr. Hess, Dr. Bieri, and Dr. Melhorn. Id. at 1001, 1012. Ultimately, medical soundness was not determinative in the constitutionality analysis. Id. at 1013. [Return to Text]

104. Id. at 1009. The court explained the imbalance arose following the 1993 amendments:

The gradual erosion of the fair exchange between rights under the Act and common-law rights to tort recovery have, for the injured worker, amounted to death by a thousand paper cuts. What is the last slice that tips the balance from a fair exchange of rights and remedies to one that is unconstitutionally inadequate from the injured worker’s point of view?

Id. [Return to Text]

105. Intervenor Petition for Review, supra note 7, at 9. This test derives from a due process challenge from United States v. Salerno. 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Kansas courts generally apply this standard under a rational basis test for equal protection challenges. Injured Workers of Kansas v. Franklin, 942 P.2d 591, 601 (Kan. 1997); In re Weisgerber, 169 P.3d 321, 327 (Kan. 2007); Miller v. Johnson, 289 P.3d 1098, 1120 (Kan. 2012); cf. State v. Ryce, 368 P.3d 342, 354 (Kan. 2016), adhered to on reh’g, 396 P.3d 711 (Kan. 2017) (narrowing the lens of the Salerno test on a Fourth Amendment challenge). The case the Attorney General cites actually challenges a criminal statute on the basis that it is unconstitutionally vague, in violation of due process of law. State v. Watson, 44 P.3d 357, 359 (Kan. 2002) [Return to Text]

106. Johnson, 427 P.3d at 1011. [Return to Text]

107. Id. (citing Pardo v. United Parcel Serv., 422 P.3d 1185, 1196 (Kan. Ct. App. 2018)). [Return to Text]

108. See Intervenor Petition for Review, supra note 7, at 1. Naturally, this is a situation of first impression. See Johnson, 427 P.3d at 1012–13. Using the due process analysis set out in Injured Workers, the procedural flaws amount to an appropriate facial challenge independent from the Salerno test. See id. The court does not necessarily ignore the test, instead, the circumstances warrant the test factually irrelevant or at least distinguishable. See id. [Return to Text]

109. See id. at 1008. [Return to Text]

110. Pardo, 422 P.3d at 1195. [Return to Text]

111. Id. at 1188–90. Providing a one-time impairment rating for a rotator cuff injury is a procedural flaw in the Sixth Edition because it deprives an injured worker the opportunity for due process under the law. See Brief of Amicus Curiae, supra note 69, at 14. [Return to Text]

112. Johnson, 427 P.3d at 1009. [Return to Text]

113. Id. [Return to Text]

114. See id. at 15–16. [Return to Text]

115. See Brief of Amicus Curiae, supra note 69, at 14.

Every person and every injury is unique. This is fundamental to the “adequate substitute remedy” requirement of due process. This quid pro quo is destroyed when the AMA’s Guides, 6th Edition require a “cookie cutter” impairment rating without consideration of individual circumstances. Furthermore, by barring recognition of individual injuries, this approach enshrines, and effectively bars incorporation of advances in medical science recognized by the expertise of a knowledgeable physician. As illustrated by the record in this case, Mr. Pardo was a victim of that regression.

Id. [Return to Text]

116. See Johnson, 427 P.3d at 1013. Eliminating physician discretion abandons fairness to each injured worker. See Brief of Amicus Curiae, supra note 69, at 14. The Sixth Edition forces injured workers into a narrow category where a particular injury amounts to a particular impairment rating. Id. This consistency inappropriately abandons the art of medicine which incorporates a physician’s experience, training, and skill in examining a patient. Id. (citing Fourth Edition, supra note 72). [Return to Text]

117. See In re Weisgerber, 169 P.3d 321, 327 (Kan. 2007) (applying Salerno’s “no set of circumstances” test under an equal protection analysis); State v. Watson, 44 P.3d 357, 363–64 (Kan. 2002) (applying Salerno under an unconstitutionally vague analysis). [Return to Text]

118. Injured Workers of Kansas v. Franklin, 942 P.2d 591, 601 (Kan. 1997). [Return to Text]

119. See Brief of Amicus Curiae, supra note 69, at 15. [Return to Text]

120. See Johnson, 427 P.3d at 1013. [Return to Text]

121. Intervenor Petition for Review, supra note 7, at 9–11. The Kansas Supreme Court has previously emphasized the importance of reviewing the remedy as applied to the original Act:

We conclude that in reviewing the sufficiency of the substitute remedy as it applies to amendment or modification of comprehensive remedial legislation, each determination must be made on a case-by-case basis. Recognizing that all such legislation may need periodic modification, we think the proper test to apply is whether the substitute remedy would have been sufficient if the modification had been a part of the original Act. If so, then no new or additional quid pro quo is necessary to support the modification against a Section 18 attack.

Bair v. Peck, 811 P.2d 1176, 1191 (Kan. 1991). Because the court could not place the Sixth Edition under the original Act, the court appropriately proceeded under a quid pro quo analysis. See id. [Return to Text]

122. Intervenor Petition for Review, supra note 7, at 10. [Return to Text]

123. Id. [Return to Text]

124. Johnson, 427 P.3d at 1000. [Return to Text]

125. Id. at 1001. Dr. Koprivica explained that a cervical fusion prevents movement at the motion segment levels. Id. [Return to Text]

126. Id. at 1000. [Return to Text]

127. See id. at 1001. Harms after the adoption of the Sixth Edition are not easily cognizable because of the Sixth Edition’s objective methodology for measuring impairment, removing the subjective analysis of a claimant. Controversy Over the AMA Guides, Sixth Edition, supra note 74. Consistency of the Sixth Edition does not distinguish between how badly someone is hurt and their ability to continue working, instead it puts a stamp on a particular injury. Id. (expressing that the Sixth Edition’s consistency does not equate to fairness). Despite Johnson’s ability to return to work, Johnson maintains a case and controversy because he has a due process right to challenge whether he obtained an adequate remedy under Section 18 of the Kansas Bill of Rights. Johnson, 427 P.3d at 1003. In raising a facial challenge, Johnson represents workers who cannot handle such drastic results of the shift from the Fourth Edition to the Sixth Edition. See id. at 1013. [Return to Text]

128. See Dan DeBias, Protecting Injured Workers by Eliminating the Use of the American Medical Association Guides in the Evaluation of Permanent Partial Disability, 50 J. Marshall L. Rev. 589, 598 (2017) (“[T]he primary purpose of the AMA Guides is to ‘rate impairment to assist adjudicators and others in determining the financial compensation to be awarded to individuals who, as a result of injury or illness, have suffered measurable physical and/or psychological loss.’”) (citing Rondinelli et al., supra note 12, at 5). [Return to Text]

129. Johnson, 427 P.3d at 1000–01.[Return to Text]

130. Id. The court accepted physician testimony concerning Johnson’s impairment. Id. Dr. Hess testified that “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.” Id. Dr. Koprivica believed Johnson’s impairment was 25% because of the severity of his injury. Id. Despite the Attorney General’s argument, assessing such an injury under common law could incorporate the loss of earning power as a result. See Wahwasuck v. Kansas Power & Light Co., 828 P.2d 923, 931 (Kan. 1992). [Return to Text]

131. Johnson, 427 P.3d at 1011. “[T]he Fourth Edition was truly a guide; it gave physicians discretion in exercising their independent judgment and the impairment ratings were nonbinding.” Pardo v. United Parcel Serv., 422 P.3d 1185, 1201–02 (Kan. Ct. App. 2018) (“[U]nder the Fourth Edition, depending on the recovery of the individual, the physician could give a 0% rating or the physician could assign a different impairment rating as the physician found appropriate. There appears to be no such discretion in the Sixth Edition.”). [Return to Text]

132. Intervenor Petition for Review, supra note 7, at 11–12. [Return to Text]

133. Johnson, 427 P.3d at 1012; Kan. Stat. Ann. §§ 44-510d(b)(23)–(24), 44-510e(a)(2)(B) (2018). [Return to Text]

134. See id. [Return to Text]

135. See Hill v. Am. Med. Response, 423 P.3d 1119, 1134 (Okla. 2018), reh’g denied (July 25, 2018). Oklahoma recently dealt with a similar constitutional challenge in which it upheld the statutory amendment requiring the “most current edition” of the AMA Guides. Id. The court ruled that “most current edition” referred to the most current AMA Guides at the time the statutory amendment was drafted, which was the Sixth Edition. Id. An interpretation otherwise would be an unconstitutional delegation of authority. Id. [Return to Text]

136. Pardo, 422 P.3d at 1194. [Return to Text]

137. See id. [Return to Text]

138. See id. [Return to Text]