Kansas Supreme Court Says Use of 6th Edition of AMA Guides is Constitutional
In a much anticipated decision, the Supreme Court of Kansas reversed an August 2018 decision of the state's Court of Appeals that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides for measuring permanent impairment of injured workers under the Kansas Workers’ Compensation Act [Johnson v. United States Food Serv., 2021 Kan. LEXIS 2 (Jan. 8, 2021). Finding the language of Kan. Stat. Ann. 2019 Supp. § 44-510e(a)(2)(B) referencing the 6th Edition could reasonably be interpreted as a "guideline" rather than a "mandate," the high court found the statutory provision constitutional [Opinion, p. 3]. The court stressed the reference to the 6th Edition did not alter the requirement that any impairment rating be "established by competent medical evidence" [Opinion, p. 11].
Background
Johnson injured his cervical spine by trying to open a door that was frozen shut on a trailer while working for U.S. Food Service. Dr. Harold Hess inspected Johnson's injury and diagnosed Johnson with cervical myeloradiculopathy. Dr. Hess found that Johnson had herniated discs at the C5-C6 and C6-C7 level that was affecting spinal cord function. Because of the severity of the injuries, Dr. Hess recommended immediate surgery. Johnson then filed a claim for workers compensation benefits. Ultimately, using the Sixth Edition of the AMA Guides, Dr. Hess rated Johnson as 6 percent of the whole person impaired. The ALJ and the Workers' Compensation Board refused to address Johnson's constitutional claim on the basis that the Board lacked authority to hold an act by the Kansas legislature unconstitutional.
Johnson appealed the Board's ruling to the Court of Appeals. There, Johnson asked the panel to determine whether the 2013 amendment to K.S.A. 44-510e discussing the use of the Sixth Edition of the AMA Guides to measure permanent impairment for work injuries violates section 18 of the Kansas Constitution's Bill of Rights. The Court of Appeals agreed with Johnson, holding that with "the adoption of the Sixth Edition of the AMA Guides, 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 occurring on or after January 1, 2015." Johnson v. U.S. Food Service, 56 Kan. App. 2d 232, 257, 427 P.3d 996 (2018) [for a more complete discussion of the Court of Appeals decision, click here].
The panel remanded the case to the ALJ with instructions to conduct further proceedings on Johnson's claim using the Fourth Edition of the AMA Guides. Both the employer, U.S. Food Service, and the state appealed.
Competent Medical Evidence
The Supreme Court indicated that "on the way to its conclusion" that the language requiring that impairment ratings for injuries occurring on and after January 1, 2015, be based on the Sixth Edition was unconstitutional, the panel interpreted the statute as doing away with the requirement that the percentage of functional impairment the employee sustained on account of the injury must be established by competent medical evidence. According to Justice Stegall, writing for the Court, the panel reasoned that while "previous versions of the Guides deferred to the physician's discretion in providing an impairment rating" and "left room for adjustments needed to meet the evolving demands of medical science," the "statute no longer refers to 'competent medical evidence' when dealing with injuries after January 1, 2015" and thus, medical "discretion has been removed [Johnson, 56 Kan. App. 2d at 254].
Justice Stegall stated that the appellate panel's reading of the statute ignored another plausible interpretation. It was equally reasonable to interpret the legislative choice of the language "based on the sixth edition" as supplanting only the parallel phrase applicable to injuries prior to 2015—i.e., "based on the fourth edition." This, stressed the justice, would leave intact the primary substantive effect of the statute which was to define the extent of the injury to be a percentage of functional impairment "as established by competent medical evidence" [Opinion, p. 9].
The justice continued, noting that the use of the phrase "based on" indicated the Legislature intended the Sixth Edition to serve as a standard starting point for the more important and decisive competent medical evidence. That is, the application of a standard, while setting the legal parameters of any possible final resolution, leaves work to be done. Justice Stegall concluded:
Thus, we hold that the language added in 2013 does not change the essential legal standard for determining functional impairment. K.S.A. 2019 Supp. 44-510e(a)(2)(B) still requires that ratings be "established by competent medical evidence." The 2013 amendments merely reflect an update to the most recent set of guidelines—which serve as a starting point for any medical opinion. K.S.A. 2019 Supp. 44-510e(a)(2)(B) has never dictated that the functional impairment is set by guides. This has not changed. The key fact—percentage of functional impairment—must always be proved by competent medical evidence [Opinion, p. 11].
The justice noted that, aside from an updated starting point, the legal substance of K.S.A. 2019 Supp. 44-510e(a)(2)(B) remained the same as it had been. Given this, the challenge under section 18 of the Kansas Constitution Bill of Rights necessarily failed.
Brief Commentary: "Guideline" versus "Mandate"–Are You Kidding?
I'm left wondering if the Kansas Supreme Court hasn't engaged in a bit of ambiguous word play with its so-called distinction between a "guideline" and a "mandate." So, are we to understand that the function of the 6th Edition of the AMA Guides is merely to provide the physician with a good place to start when it comes to determining an injured worker's impairment?
I'm curious: If a physician indicates that he or she "started" with the 6th Edition, but that his or her medical opinion was actually more in line with the impairment discussion set forth in the 4th Edition, would the opinion as to impairment be competent medical evidence? As an orthopedic surgeon-friend of mine in another state sometimes says, "I use the 6th Edition, unless I don't."
I'm going back to read the opinion a few more times. In the meantime, I'm left wondering whether the Supreme Court really cleared anything up with its decision.