No. 117,725 (Kan. App. Aug. 3, 2018)
Full Opinion: [Howard Johnson v. US Foods]
Factual Background:
Prior to January 1, 2015, permanent partial impairment was to be assessed using the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition. After this date, the Kansas legislature, by statutory amendment in 2013, provided that all claims for permanent partial impairment were to be assessed using the later 6th Edition.
Howard Johnson sustained a work-related neck injury on October 16, 2015, including spinal cord compression due to disc herniations at C5-7. Dr. Harold Hess diagnosed Mr. Johnson with cervical myeloradiculopathy, and three months later performed a bone transplant to the cervical spine to create a fusion with involvement of a metal plate. Upon completion of treatment, Dr. Hess assessed a 6% permanent partial impairment under the AMA Guides, 6th Edition. In testimony, Dr. Hess indicated that the AMA Guides, 4th Edition would have dictated a 25% permanent partial impairment, which he believed to be representative of Mr. Johnson’s true impairment in considering loss of motion and potential need for future surgery.
Mr. Johnson obtained a separate opinion from Dr. P. Brent Koprivica. Dr. Koprivica agreed with Dr. Hess’ conclusions under the 4th Edition, testifying that the spinal cord damage and loss of motion at two motion segments was sufficient to represent a 25% permanent partial impairment.
At regular hearing, the ALJ awarded $14,804.70 for 6% permanent partial impairment under the 6th Edition, while noting a difference of approximately $47,000 between the 4th Edition and 6th Edition ratings. The Appeals Board affirmed the ALJ’s award, refraining from constitutional arguments due to lack of jurisdiction, as it had done prior to the recent Pardo decision.
Analysis/Holding:
In a 33-page opinion of the panel, without dissent, the Court held that the portions of K.S.A. 2014 [Supp.] 44-510d(b)(23) and (24), requiring the use of the 6th Edition, have emasculated the Act to the point that it is no longer an adequate remedy for injuries sustained on or after January 1, 2015. Accordingly, the Court reasoned that the most appropriate remedy, as in Pardo, was to sever the unconstitutional portion of the statute and remand to the ALJ for further determination under the remaining statute—this results in an application of the 4th Edition to all claims, both before and after January 1, 2015. More or less, the Court indicated its opinion that the later amendment requiring use of the 6th Edition is the proverbial straw that broke the camel’s back following the widespread 2011 statutory amendments.
Pursuant to Kansas Supreme Court Rules 7.03 and 8.03, the Court of Appeals’ decision is effective upon a mandate issued: (1) 7 days following expiration of the 30 day period to file a petition for review to the Supreme Court, or (2) on the date a petition for review is denied by the Supreme Court. Accordingly, while the decision is not currently effective, it now places many employees and employers/insurers in a state of limbo with regard to permanent partial impairment valuation.