Last month (June), in Hilburn v. Enterpipe, LTD, the Kansas Supreme Court ruled favorably to protect the citizens of  the State of Kansas by again applying the Quid Pro Quo rule to strike the pain and suffering cap in Kansas.   Many people do not realize that many states put a cap on how much can be claimed in pain suffering.    Many courts are now finding such caps unfair and a violation of due process or an inadiquate remedy.   In Kansas, the cap on pain and suffering was found in K.S.A. 60-19a02.    This statute caped pain and suffering at $250,000 and only recently was amended to give somewhat trivial increases with inflation up to capping again at 350,000 starting in 2020.   Claims for 2019 had been increased to $325,000.    We assume it was the legislatures intention to leave the cap indefinitely at $350,000 regardless how horrific the injury would be.

The caps on pain and suffering were at the push of tort reform by insurance companies to put limits on what they would pay on claims.     The idea being that the caps would stop the so called frivolous claim.   But, in reality, what the caps did was take away the ability of seriously injured person to claim pain and suffering that many juries would give them for certain injuries.    In other words, a person who had a leg painfully torn from their body in auto accident and lived to see and endure said pain were not able to receive damages from jury in excess of what is stated in K.S.A. 60-19a02.    Another cruel aspect of the statute was that the jury was not told their verdict was limited by K.S.A. 60-19a02.   

In other words, since a jury was not told, a jury could give a verdict to the example in preceding paragraph of a million dollars in pain and suffering caused by the trauma of living through an accident where their leg is ripped from their body.    Such a verdict would also consider the rehab of the severed leg and all that the trauma involved of overcoming it.    One can easily see we think why a jury would award a million dollars for such pain, such suffering, and such anguish.    In short, who would want to endure such an injury?    A million dollars would not replace the leg or the memories of the accident.     Herein lies the problem with K.S.A. 60-19a02.    The statute does not stop frivolous claims.     All it does is punish people with really bad injuries.   It stops juries a from awarding what people with such injuries are entitled to receive.

That seems to be the gist of the holding of Hilburn v. Enterpipe.     In short, a jury should determine what is frivolous, not the legislature.   The jury of peers should decide what case is worth with a judge correctly instructing the law to said jury.    Further, in reality, all the cap did was protect the insurance companies and allowed them to avoid paying paining damages that would otherwise be owed.   It was simply cost saving tool and did little to provide any tort reform. We believe the Kansas Supreme Court saw through the fake guise of K.S.A. 60-19a02 and was right to give control back to the juries.    This is a power to the people type of decision.    We agree whole heartedly that juries exist to award damages when they are warranted and to deny damages when they are not warranted.    The decision is correct.

 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 6^th Edition.   The Appeals Court reinstated the old language of the statute which required the use of the 4^th Edition.   The analysis was based upon whether the 6^th 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 6^th 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 6^th Edition.    They left the rest of the workers compensation benefit law and caps in place.   They replaced the 6^th 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 4^th 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 6^th 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 6^th Edition.    However, if the Supreme Court affirms, the 4^th Edition would then control.    Thus, a pending claim without a 4^th Edition ruling would potentially be void. 

            In short, the 4^th 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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