Kansas Supreme Court Upholds 6th Edition of AMA Guidelines for Disability Ratings

The Kansas Supreme Court on Friday reversed the Court of Appeals and ruled that a law passed in 2013 that requires workers’ compensation disability ratings to be based on a specific set of guidelines is not unconstitutional.

The high court said the law that requires ratings to based on the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment could be interpreted to establish merely a guideline, not a strict mandate. As such, it cannot deprive injured workers of the rights guaranteed to them by the Kansas state constitution, as the Court of Appeals had decided.

“The 2013 amendments merely reflect an update to the most recent set of guidelines — which serve as a starting point for any medical opinion,” the court said in an opinion written by Justice Caleb Stegall.

Although the high court restored use of the AMA guides in rating disabilities, the attorney who represented claimant Howard Johnson III in the case said the ruling is a victory, in a sense, because it states that the guidelines are not binding.

“If they follow the decision the way I think it should be followed, it shouldn’t be a problem,” said Mark E. Kolich, a sole practitioner in Lenexa, Kansas.

Claimants attorneys around the country have challenged the use of the 6th edition of the AMA guides, arguing that they unfairly reduce permanent disability benefits by understating the degree of functional impairment. The Pennsylvania Supreme Court struck down a state statute that required use of the guidelines in impairment ratings, finding it an unconstitutional delegation of legislative authority to the AMA. The Oklahoma Supreme Court, however, rejected a similar challenge in 2018.

Johnson, a delivery driver, launched a legal challenge to guidelines after he injured his cervical spine in 2015 while attempting to open a trailer door that was frozen shut. Johnson returned to work at U.S. Food Service after undergoing spinal fusion surgery. A physician rated his disability at 6% using the 6th edition of the AMA guidelines — resulting in a permanent disability award of $14,804.70.

Johnson’s physician testified that his disability would have been rated at 25% under the 4th edition of the guidelines, which had been the standard in Kansas up until the law was changed in 2013. That would have netted an award of $61,713.70.

An administrative law judge refused to hear Johnson’s argument that the law that required use of the 6th edition violated his rights under section 18 of the Kansas constitution, which requires a legal remedy for all persons who are injured. The Court of Appeals, however, ruled in 2018 that the law requiring use of the AMA 6th edition was unconstitutional because it did not provide an adequate substitute remedy for an inured workers’ right to file a lawsuit against his employer.

In Kansas as in most other states, workers are barred from prevailing in tort actions against their employers because workers’ compensation is their exclusive remedy.

The Supreme Court, however, wrote in its opinion that the Court of Appeals had interpreted Section 44-510(3)(2)(B) to require the use of the 6th edition of the AMA guidelines. The Court of Appeals said in its decision that as a result, the statute removes all physician discretion when determining impairment ratings despite language elsewhere in workers’ compensation statutes that requires ratings be based on “competent medical evidence.”

The Supreme Court said the statute could also be interpreted to require the use of the 6th edition as a guideline while leaving the requirement that ratings be based on competent medical evidence intact.

“The latter interpretation gains sense and support when considering the Legislature’s choice of the words ‘based on’ in the statute,” the court said. “Using the phrase ‘based on’ typically signifies a guideline rather than a mandate.”

The Supreme Court did not address the question as to whether Johnson’s 6% rating was adequate. Kolich, however, said he intends to file a pleading asking the court to remand the case to the administrative law judge who first heard the case to determine if the rating adequately compensated his client for his permanent disability.

Kolich said Johnson continues to work for U.S. Food Service, but it’s a physically demanding job.

“It would be tough if he were in top physical condition, but with what that fusion surgery did, he’s sore all the time,” Kolich said.