The case of Johnson v. US Foods is currently before the Kansas Supreme Court. This case could have dramatic consequence to injured workers in the State of Kansas. The Kansas Court of Appeals declared unconstitutional the provisions of K.S.A. 44-510d and K.S.A. 44-510e requiring the use of the American Medical Association Guidelines 6th Edition. The Appeals Court reinstated the old language of the statute which required the use of the 4th Edition. The analysis was based upon whether the 6th Edition constituted an adequate substation of remedies to workers to give up their tort rights bared by rule of exclusivity.
The rule of exclusivity is codified in K.S.A. 44-501b (d) and prevents the injured worker from bringing negligence claims for injuries that occur at work. Those claims are replaced with benefits within the workers compensation act. In Kansas, these benefits include medical treatment, disability such as TTD when off work, TPD when taken off work partially, and PPD and PTD for permanent injury. The problem with constitutionally is that for worker or employee to give up his/her negligence claim, the work injury claims under workers compensation law taken as whole must be an adequate substitute remedy. Without workers compensation laws being a valid substitute remedy for giving up a tort claim, the state legislature cannot eliminate the tort claim or negligence claims for injuries or accidents occurring at work. This concept of due process is sometimes called the Quid Pro Quo.
In Kansas, in Johnson v. US Foods, with work accidents and work injury, the Court of Appeals held that the 6th Edition eroded the workers compensation benefit to such a degree that it simply was no longer a valid injury benefit. The Court considered striking the rule of exclusivity. If that had happened, a worker could have sued his/her employer directly for negligence. Such a claim would not be subject to limits of Kansas work injury law. There would have no limits to scheduled injury, general permanent partial injury, or any caps on total disability. Such ruling would have allowed claims for punitive damages, wage loss and pain and suffering. But, the Court indicated that would have been too extreme of a result.
Instead, the court took less drastic action of simply voiding the statutory language on disability benefits related to the 6th Edition. They left the rest of the workers compensation benefit law and caps in place. They replaced the 6th Edition language with the language that predated the 2011 changes to the law. Or, in other words, they voided the unconstitutional part of the statute, and allowed the old clause that existed before 2011 to become law again. By doing so, the AMA Guidelines 4th Edition would become the law again.
This case was appealed by the Kansas Attorney General who has authority to do so as a statute was questioned constitutionally. By appealing, the bar on the 6th Edition is on hold until the Kansas Supreme Court rules on the issue. This means that the courts and lawyers must now present their evidence to include both sets of ratings. The reason being that the current law by statute requires the use of the 6th Edition. However, if the Supreme Court affirms, the 4th Edition would then control. Thus, a pending claim without a 4th Edition ruling would potentially be void.
In short, the 4th Edition is fairer to injured workers. If worker is subject to the rule of exclusivity, and the workers only claim to injury is the workers compensation act, it is indeed true that the disability benefits should reflect fair compensation for the injury. The Sixth Edition falls way short of doing so. We agree strongly with the Kansas Court of Appeals and applaud the ruling as protecting the fairness, the constitutionality, and the substitute remedy of the Kansas Workers Compensation Act.
Hopefully, the Supreme Court will protect the fairness of the Kansas Workers Compensation Act and affirm the Court of Appeals.
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