Appeals Court Overturns KS Work Comp Rule

Liz Carey

Topeka, KS (WorkersCompensation.com) – The Kansas Court of Appeals ruled Friday that a change to workers’ compensation laws is unconstitutional, and ordered the Kansas Workers’ Compensation Appeals Board to compensate an employee previously denied benefits.

Specifically, the Appeals Court found that a section of the Kansas Workers’ Compensation Act that mandates using the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment was unconstitutional because it prohibits an employee from recovering an award for his permanent partial disability from a new and distinct work-related injury.

The case centers around Francisco Pardo, a UPS employee. In 2013, Pardo injured his left shoulder at work, and was subsequently treated with surgery and given a 10 percent permanent partial injury declaration. Workers’ Compensation awarded Pardo 15 percent permanent partial disability.

In 2015, Pardo injured the same shoulder. Doctors testified that the injury was separate from the initial injury and was, in fact, located in an entirely different spot on the shoulder. However, despite doctor testimony that the injury was a separate one, due to the Sixth Edition of the AMA Guides’ mandate that if an individual has previously received an impairment rating on a shoulder, then no subsequent impairment rating may be assessed on the same shoulder, Pardo’s doctors were both required to find a 0 percent impairment rating on Pardo’s shoulder.

“As specifically noted in Table 15-5 on Page 402, in the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, regarding the shoulder regional grid for upper extremity impairments, for a rotator cuff injury, with a partial-thickness tear with history of painful injury, with residual symptoms without consistent objective findings, a zero to two (0 to 2) percent upper extremity impairment is assigned as the range of impairment,” wrote Dr. P. Brent Koprivica, one of Pardo’s examining physicians, according to court testimony.

“However, it is specifically noted ‘This impairment can only be given once in an individual’s lifetime.’ In Mr. Pardo’s case, he has already had a fifteen (15) percent upper extremity impairment assigned for the partial-thickness rotator cuff tear associated with his prior claim on July 11, 2013.”

Koprivica went on to write that the Fourth Edition of the Guides would have given Pardo an impairment rating of another 10 percent, on top of the 15 percent already noted.

Because of the rating by both physicians’ interpretation of the Guides, the Workers’ Compensation Appeals Board had no choice but to deny Pardo’s benefits claim, court records said.

The matter went before an administrative law judge, who denied Pardo’s claim. Pardo then appealed to the Workers’ Compensation Board saying the law was unconstitutional. The Board, while agreeing with Pardo, upheld the administrative law judge’s opinion because it was not up to the Board to determine the law’s constitutionality.

According to the court record, Board Member Thomas Arnhold wrote: “In this Board Member’s humble opinion, application 11 of the AMA Guides to [Pardo’s] case as directed in K.S.A. 2014 Supp. 44-510d(b)(23) denies [Pardo] due process.”

Arnhold went on to say “that if he ‘had the authority and jurisdiction to do so, he would declare the portion of K.S.A. 2014 [Supp.] 44-510d(b)(23) requiring use of the AMA Guides [Sixth Edition], as applied to [Pardo], unconstitutional.'”

The appeals court also determined the use of the Sixth Edition of the AMA Guides was unconstitutional, as it denied Pardo is right to due process. The appeals court reversed the Board’s ruling and ordered the Board to recalculate Pardo’s impairment using the Fourth Edition.

Kim Martens, with Martens Work Comp Law, LLC, said the ruling did not find the entire 2015 revision to the Workers’ Compensation Act, just the mandate on which AMA Guide to use. Martens said the case is now likely to head to the Kansas Supreme Court.

“In workers’ compensation, it’s not a mandatory appeal, but it’s a discretionary appeal,” Martens said in an interview with WorkersCompensation.com. “It’s highly likely, not 100 percent, but highly likely that the employer, the losing party in this case, will file a petition for review with the Supreme Court.”

And while it is up to the Supreme Court to determine whether or not it will hear the case, Martens said he felt it was likely it would.

“My guess is they’ll take it, because this is a hot button issue in Kansas,” he said.