Just as Kansas practitioners began to think that years of controversy over impairment ratings had been settled, at least to some degree, new developments mean that state be a cauldron of debate and litigation over the issue for months or years to come.
Six months ago, the Kansas Supreme Court found that the American Medical Association’s controversial Guides to the Evaluation of Permanent Impairment, 6th Edition, was merely a starting point for some injuries. State law did not limit doctors to only the 6th for permanent partial disability, but allowed them to consider other medical evidence, the court found in a ruling that some claimants’ advocates said they could live with.
But in late May, the Appeals Board for the state Workers’ Compensation Division held that a separate law does, in fact, require the 6th edition – and only the 6th – for scheduled injuries, such as the loss of fingers, limbs, eyes or hearing.
“I’m not surprised. The language is different in the two statutes,” said Jan Fisher, a professor at Washburn University School of Law.
The board’s decision in Deron Butler v. Goodyear Tire and Rubber Co. has been appealed by the claimant, setting the stage for potentially another significant Appeals Court or Supreme Court ruling in coming months.
John Jurcyk, the Kansas City attorney who represented the employer’s side in the Butler case, noted that the Appeals Board and the administrative law judge’s ruling before it, raised some eyebrows with the decision.
“The ALJ came up with that on his own. No one had raised that issue,” said Jurcyk. He added in his law firm’s blog that the case tees up yet another constitutional challenge to the 6th edition.
“Presently, there is more clarity that the AMA Guides, Sixth Edition, shall apply to scheduled injuries,” he wrote. “However, the constitutional issues remain to be resolved.”
“It’s going to get overturned on appeal, I feel sure,” said Keith Mark, a claimants’ attorney in Mission, Kansas.
Mark, known for his outspoken nature and success in other cases involving the Guides, didn’t mince words: “I hope it gets to the Supreme Court and the court says, ‘Enough with all this about the Guides,’ and throws a monkey wrench” into business and insurance efforts to mandate the 6th edition.
The 6th has been shown to result in significantly lower ratings for some – but not all – injuries. In the Butler case, for example, the worker had suffered a torn biceps tendon. Doctors provided impairment ratings that were 10 to 13 percentage points higher under the 4th edition of the guides than under the 6th.
A number of claimants’ lawyers and Democratic lawmakers have argued for years that Kansas had gained notoriety for all the wrong reasons when the Legislature rolled back workers’ compensation benefits in the mid-2000s. Lawmakers then compounded the cutbacks by decreeing the use of the 6th edition for injuries incurred after 2014, critics charged. Until then, physicians had utilized the more-generous 4th edition.
The Kansas Appeals Court in 2018 held that the law was unconstitutional because the 6th edition deprived some workers of benefits altogether, thus sundering the grand bargain. The high court in January of this year, in Howard Johnson v. U.S. Food Service, did not go as far, and opined that the plain language of the statute did not limit physicians to the 6th edition. Impairment ratings can be based on the edition as well as other “competent medical evidence,” the law reads.
While some stakeholders felt the Johnson decision appeared to settle the matter for most injuries, giving doctors more options, the Appeals Board in Butler noted that the wording of Kansas Statute 44-510d(b)(23) does not give any wiggle room for scheduled injuries: Whole-body injuries may be rated with a range of tools, but impairment ratings for scheduled injuries must spring from the 6th edition, the board wrote.
Then, just this month, the Kansas Court of Appeals appeared to underscore that notion. In Evelyn Guzzo v. Heartland Plant Innovations and Emcasco Insurance, the court on July 16 stated that ratings for scheduled injuries must consider the 6th.
Guzzo was represented by Roger Fincher, the claimants’ attorney who also represents Butler. Fincher could not be reached for comment for this article, but he argued to the court in Guzzo that a doctor’s reliance on the 6th edition was unconstitutional and lacked credibility. The Appeals Court disagreed.
“As the Kansas Supreme Court found in (the Howard Johnson decision), the Sixth Edition and not the Fourth Edition applies,” the court wrote. “Thus, this (Guzzo’s) argument lacks merit.”
And now comes another wrinkle: The American Medical Association, facing criticism over the 6th edition’s ratings in recent years, this year decided to move to regular, perhaps annual updates of the Guides. A new editorial process is designed to provide more transparency and more input from stakeholders.
AMA members have said the change will result in ratings that are more fair and more generous to injured workers, at least in some cases.
The question now, following the Howard Johnson decision, is: Will lawmakers and courts in Kansas accept the regularly updated, digital Guides as another tool physicians can use to set impairment ratings?
“As it stands now, as long as the doctor says he used the 6th as a starting point, he can use other medical evidence,” Mark said.
Jurcyk, the insurance attorney, said questions remain. “Yes, the doctor can deviate from the 6th edition. But does that mean he can deviate just because he wants to give a higher impairment rating?”
Stakeholders may know more in a few months, after further appeals court rulings, Jurcyk said.