Battle Continues in Kansas Over Use of 6th Edition of AMA Guides
In the continuing battle in Kansas over the use of the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, a divided Court of Appeals reversed a decision of the Kansas Workers Compensation Board (Board) finding that the work-related injury the worker sustained resulted in only a 3 percent impairment to her body as a whole, where the majority of the Court said the Board relied on a medical opinion that appeared to have been “exclusively based” on the Sixth Edition of AMA Guides to establish the worker’s functional impairment rating, rather than on a comprehensive view of competent medical evidence [Garcia v. Tyson Fresh Meats, 2022 Kan. App. LEXIS 4 (Jan. 28, 2022), Opinion, p. 3]. The majority stressed that a medical opinion confined to the Sixth Edition typically would not conform to the Kansas Supreme Court’s recent reading of K.S.A. 2020 Supp. 44-510e(a)(2)(B), governing permanent impairment ratings, in Johnson v. U.S. Food Service, 312 Kan. 597, 603, 478 P.3d 776 (2021) (Johnson II).
Background
In June 2017, Garcia filed an application for hearing with the Kansas Division of Workers’ Compensation. She claimed January 12, 2017 as her date of injury. At the time Garcia filed her application, K.S.A. 2016 Supp. 44-510e(a)(2)(B) provided that the extent of permanent partial general disability for injuries occurring on and after January 1, 2015, should be “based on the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.” The Fourth Edition of the AMA Guides was the version applicable to injuries occurring prior to January 1, 2015 [K.S.A. 2020 Supp. 44-510e(a)(2)(B)].
Garcia was evaluated by three doctors, each of whom was specifically requested to provide a rating for Garcia’s whole-body impairment under both the Fourth and Sixth Editions of the AMA Guides. Dr. John Estivo, D.O., rated Garcia at 5 percent under the Fourth Edition and 3 percent under the Sixth Edition. Dr. George Fluter, M.D., rated Garcia at 18 percent under the Fourth Edition and 19 percent under the Sixth Edition, and Dr. Terrence Pratt, M.D., rated Garcia at 8 percent under the Fourth Edition and 2 percent under the Sixth Edition.
Johnson v. U.S. Food Service Litigation
Readers may recall that several years ago, a panel of the Kansas Court of Appeals ruled that use of the Sixth Edition of the AMA Guides was unconstitutional, and that the Fourth Edition should be used in evaluating an injured workers’ permanent impairment [see Johnson v. U.S. Food Service, 56 Kan. App. 2d 232, Syl. ¶ 7, 427 P.3d 996 (2018) (Johnson I); to see my commentary on that decision, click here]. That decision was appealed to the Kansas Supreme Court, which granted review in February 2019.
Notwithstanding the appeal status of Johnson I, the ALJ issued a decision in Garcia’s case. The ALJ concluded that Dr. Estivo’s assessment of a 3 percent impairment was most persuasive based on the doctor’s heightened familiarity with Garcia’s claim (he examined her multiple times), as well as the overall credibility of his report and findings. The ALJ also found that because Garcia only had 3 percent impairment to her body as a whole, she was not eligible for work disability compensation under K.S.A. 2020 Supp. 44-510e(a)(2)(C)(i), which states that an employee may be eligible to receive work disability if “[t]he percentage of functional impairment determined to be caused solely by the injury exceeds 7 1/2 percent to the body as a whole or the overall functional impairment is equal to or exceeds 10 percent to the body as a whole in cases where there is preexisting functional impairment.”. The ALJ did authorize Garcia to apply for future medical care benefits.
For purposes of our discussion, the Board affirmed the ALJ’s decision, except that it found Garcia was not entitled to future medical benefits. Garcia appealed to the Court of Appeals.
In the meantime, the Kansas Supreme Court issued its ruling in Johnson I. Reversing the Court of Appeals [Johnson v. United States Food Serv., 312 Kan. 597, 478 P.3d 776d (2021) (Johnson II), the Supreme Court found the language of Kan. Stat. Ann. 2019 Supp. § 44-510e(a)(2)(B) referencing the 6th Edition could reasonably be interpreted as a “guideline,” and not a “mandate.” Accordingly, the high court found the statutory provision was constitutional. The Court stressed the reference to the 6th Edition did not alter the requirement that any impairment rating be “established by competent medical evidence” [for my extensive discussion of the Kansas Supreme Court’s decision, click here].
Court of Appeals Decision in Garcia
Returning to the instant case, the majority of the Court, citing the Supreme Court’s decision in Johnson II, held the ALJ and the Board had erred when they entered an award based on a functional impairment rating “derived solely” from the Sixth Edition of the AMA Guides [Opinion, p. 25]. The majority said the case had to be remanded for reevaluation consistent with the Supreme Court’s directive in Johnson II that ratings be grounded in a comprehensive assessment of competent medical evidence.
The majority noted that this might require the examining physicians to revise their assessments of Garcia’s functional impairment to take into account additional information they believe would augment the Sixth Edition as competent medical evidence pertinent to her work injury. In the event that need arises, said the majority, the evaluating physicians’ starting point for Garcia’s rating must be the Sixth Edition. If, in a physicians’ expert medical opinion, the Guides provide too narrow a view of Garcia’s ability to work and a similarly understated functional impairment, they may (and should) augment their evaluations using those tests, exams, reports, or resources they determine in their professional expertise will yield a more accurate result. That includes information and guidance that may be gleaned from the Fourth Edition or other sources they consider reliable or authoritative within their profession.
Dissent
Judge Bruns concurred in part and dissented in part, stating that he would conclude that the Board correctly interpreted and applied Kansas law in this action. Likewise, he would conclude that there was competent medical evidence in the record—when viewed as a whole—to support the Board’s decision.