Kansas Court Strikes Down Use of AMA Guides 6th Ed.

Decision Reinstates 4th Edition for Workers’ Comp Disputes

In a decision that quotes, among other authority, Linda Loman, wife of Willy Loman, of Arthur Miller’s Death of a Salesman, the Court of Appeals of Kansas earlier today struck down as unconstitutional the use of the 6th Edition of the AMA Guides for measuring permanent impairment of injured workers under the state’s Workers’ Compensation Act (“the Act”) [Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018)].

Acknowledging that the Kansas Legislature could substitute a statutory remedy for one available at common law, the Court stressed that due process required that the substitute provide “an adequate remedy for the common-law remedy that has been abolished” [Syllabus, ¶ 3]. The Court concluded that following the relatively recent statutory amendments requiring use of the 6th Edition of the AMA Guides for injured workers who suffer a permanent impairment on or after January 1, 2015, the Act no longer provides such an adequate substitute remedy.


On October 15, 2015, Johnson, who worked as a delivery driver, suffered a work-related injury to his neck when he tried to dislodge a partially frozen trailer door at work. Subsequently, Johnson saw Dr. Hess, a neurosurgeon, who ordered an MRI of Johnson’s neck. The scan revealed a spinal cord compression due to disc herniations at levels C5-C6 and C6-C7. Following surgery and a recuperative period, Johnson was released to return to work, but he continued to experience symptoms related to the injury.

AMA Guides, 6th Ed.

Dr. Hess utilized the AMA Guides (6th Ed.) in rating Johnson’s permanent impairment at six percent of the whole person. Hess noted that if he had used the 4th Edition, which had been in effect until January 1, 2015, Johnson’s rating would have been 25 percent. Hess also indicated that the 25 percent impairment rating was representative of Johnson’s true impairment, considering Johnson’s loss of range of motion and his potential need for future surgery. Hess noted that 20-30 percent of fusion patients experience degeneration of adjacent discs in the next within 10 years and require additional surgery.

Expert Questions Scientific Validity of 6th Edition

Another expert, Dr. Koprivica, with expertise in occupational medicine, agreed with Dr. Hess’ assessment and concluded that 25 percent was representative of Johnson’s true impairment, given the severity of his injury. According to Koprivica, there was no scientific support for the reduced ratings in the 6th Edition of the Guides. Moreover, Koprivica indicated there had been no progression of medical knowledge, technology, or skill that would account for or justify the lower ratings assigned by the 6th Edition.

Significant Difference in Terms of Dollars

Calculated under the 4th Edition of the Guides, Johnson’s award for a 25 percent impairment would have been $61,713.70. Under the 6th Edition, a six percent impairment resulted in an award of $14,810.80, a difference of almost $47,000.

ALJ and Board Bound by 6th Edition

Following a hearing, the ALJ awarded $14,804.70 for Johnson’s six percent impairment rating under the 6th Edition and the Board affirmed. Neither addressed the constitutional issue since neither had the jurisdiction to do so. The Court of Appeals took up the appeal, noting that the sole issue was the constitutionality of the requirement in the 2013 amendment to Kan. Stat. Ann. § 44-510e that permanent impairment ratings for workers injured on or after January 1, 2015, be calculated using the 6th Edition of the Guides.

Court Provides History Lesson as to Workers’ Compensation Act

The Court described the history of the Kansas Workers’ Compensation Act in exhaustive detail, culminating its contextual discussion by noting the 2013 legislation that mandated the use of the 6th Edition of the Guides. Among the many changes seen over the years, the Court noted that in 2011, Kan. Stat. Ann. § 44-508(f)(2) was modified so as to adopt the “prevailing factor standard” for causation. Under that standard, the work accident must be the primary factor in causing the injury or medical condition and the resulting disability or impairment.

The Court also noted the significant effort by some legislators and others in 2015, to reverse the adoption of the 6th Edition (Senate Bill 167) and observed that with the failure to enact any modifications to the statute, the 6th Edition came into effect. Johnson’s accidental injury occurred nine months after the effective date. Testimony by one law professor indicated that Kansas is the only state that combines the use of the 6th Edition of the Guides with the “prevailing-factor” rule.

Two-Part Constitutional Analysis

The Court continued by noting that in considering Johnson’s constitutional argument, it would apply a two-part test [see Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997)]:

  1. Is the change in the Act reasonably necessary for the public interest to promote the general welfare of the people of Kansas?
  2. Does the Act in its current form provide an adequate substitute remedy for an injured worker’s right to bring a common-law action for the recovery of injuries and damages?

For the Act in its present form to pass constitutional muster, the Court indicated both questions must be answered in the affirmative. It also noted that the first part was not stringent. Johnson’s primary argument was with the second question. Even if the statutory modification was consistent with public policy under the first part of the test, there still were the due process concerns that needed to be addressed with the second.

Death by a 1,000 Papercuts

The Court said the gradual erosion of the fair exchange between rights under the Act and common-law rights to tort recovery have, for the injured worker, amounted to “death by a thousand paper cuts” [Opinion, p. 22]. While the Supreme Court declared that the tipping point had not been reached with the 1993 amendments, the Court of Appeals concluded that such a tipping point had been reached with the adoption of the 6th Edition of the AMA Guides. According to the Court, that adoption left the injured worker who suffers a permanent impairment in a “situation not unlike that of Monty Python’s Black Knight” [Opinion, p. 23].

No Longer an Adequate Substitute Remedy

The Court concluded that when considered as a whole, including the major amendments made in 1993 and 2011, the Act was no longer an adequate substitute remedy after the adoption of the 6th Edition of the Guides.

Significant Difference Between 4th Edition and the 6th Edition

According to the Court, the 6th Edition shifted the focus from functional impairment that affects job performance to basic standards of health. The assessment of functional impairment was no longer tied to the ability to do activities associated with work. Instead, the focus was on “life-care activities.” The new definition of functional impairment was not consistent with the Act. Under the Act, compensation is based on the worker’s disability. The 6th Edition measured disability in terms of the ability to perform activities of daily living rather than measuring an impairment in terms of the ability to do work. The 4th Edition, in contrast, included specific functional and intrinsic physical activities in measuring disability.

Public Trial to a Jury of One’s Peers

The Court stressed one final point—a point that has not been made in any other case that I have read. The Court argued that what injured workers have given up in exchange for Kansas’ administrative process under the Act was “the right to seek recovery in a common-law tort action presented in a public trial to a jury of their peers” [Opinion, p. 31, emphasis by the Court]. The Court noted that this exchange of rights had traditionally been viewed in economic terms. It continued:

The economic outcome of the administrative process is certainly the key element in measuring the value of the administrative side of the bargain. But in measuring the value of the other side of the bargain, those who have participated in trials of tort actions, either as lawyers or as judges, know that justice involves more than the ca-ching of a cash register [Opinion, p. 31].

The Ghost of Willy Loman

Speaking for plaintiffs in a public trial, the Court said those filing such civil actions seek “the recognition of their peers of the propriety of their conduct and a recognition of the misconduct of their adversaries” [Opinion, p. 31]. They want a public answer to the common question from friends and neighbors when they learn of the accident: “So what happened, and who’s at fault? [Opinion, p. 31]. In short, the Court added, they want to be heard.

Channeling Linda Loman [Arthur Miller’s Death of a Salesman, Act I], the Court added as to the fictional character:

I don’t say he’s a great man. Willy Loman never made a lot of money. His name was never in the paper. He’s not the finest character that ever lived. But he’s a human being, and a terrible thing is happening to him. So attention must be paid …. Attention, attention must finally be paid to such a person [Opinion, p. 31-32].

According to the Court, “Answers must not only be uncovered but publicly expressed.” For an injured plaintiff, said the Court, the value of a public trial of a common-law tort action encompassed all these things.

Appropriate Relief

Moving from the stage to the actual dispute before it, the Court held that with the adoption of the 6th Edition of the Guides, the Act has been “emasculated to the point that it is no longer an adequate quid pro quo for injured workers who suffer a permanent impairment …. [Opinion, p. 32]. The appropriate remedy was to strike the provisions that mandated the use of the 6th Edition–a decision that effectively reinstated the use of the 4th Edition as the basis for determining impairment ratings.

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3 Responses to Kansas Court Strikes Down Use of AMA Guides 6th Ed.

  1. Jon Rehm says:

    Thanks for posting. From a technical view, it seems like Johnson was decided based on the Kansas court applying heightened scrutiny to the due process violation. This case also demonstrates that while appellate courts fine tune the law, Legislatures write the law. All of the anti-worker reforms Kansas passed in 2011 are still in place after this decision.

    • I agree. One matter that piqued my interest was the Court’s pretty extensive discussion of the value of the public trial. One of the significant strengths in the tort system, according to the Court, is its ability to focus public attention on the wrong and the actor (no pun intended) who is responsible, i.e., “who’s at fault?” The Court paid no attention to the fact that the workers’ compensation system is supposed to do something other than assign blame. I’m trying to work on a piece that discusses the notion that at the time virtually all workers’ compensation acts were passed, the doctrine of contributory negligence was strongly at play. Since that time, however, states have largely moved to comparative negligence. There is a sense in which this movement has undermined one of the original rationales associated with workers’ comp as a no-fault system. When it was all or nothing, the compromise made sense. Nowadays, it is rarely all or nothing. Are we back to a system that assesses fault?

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