KANSAS SUPREME COURT AFFIRMS USE OF 6th EDITION OF AMA GUIDES
January 28, 2021
The Kansas Supreme Court issued its long-awaited decision in Johnson v. U.S. Food Service, 111725 (Kan. 2021). In this case, Mr. Johnson injured his cervical spine, ultimately requiring a two-level cervical fusion. The claimant submitted evidence from several physicians that his impairment rating under the 4th Edition of the AMA Guides would have been significantly higher than his recovery under the 6th Edition. For example, his treating physician testified that his condition warranted a rating of 6% to the whole body under the 6th Edition and 25% to the whole body under the 4th Edition.
On appeal, the Kansas Court of Appeals, agreed with Mr. Johnson that use of the 6th Edition was unconstitutional. The Court of Appeals found that the adoption of the 6th Edition of the AMA Guides along with several other statutory changes over the last decade, had reduced an injured worker’s rights to the point they no longer had an adequate right to recovery under the Workers’ Compensation Act.
The Kansas Supreme Court reversed the lower court. The Supreme Court determined that adoption of the 6th Edition is constitutional in Kanas. The Supreme Court wrote, though, that 6th Edition of the AMA Guides to Impairment should be used as a guideline or starting point when assessing impairment. The Court focused on the portion the Workers’ Compensation Act that states the extent of permanent impairment must be “established by competent medical evidence.” Because the 6th Edition serves only as the starting point to determine impairment, physicians are not strictly limited to it when assessing impairment.
This decision was not the bright-line decision many had expected. While the Court affirmed the use of the 6th Edition, its decision in Johnson created room for physicians to depart from the 6th Edition by emphasizing that permanent impairment must be based on “competent medical evidence.” While not all of the practical implications of this decision will be clear until administrative law judges begin applying Johnson, we expect to see opinions from physicians basing their impairment ratings on their personal knowledge and experience, medical treatises, and input from various editions of the Guides. This would include the 4th Edition despite it being replaced in the statute by the 6th Edition. We expect that most administrative law Judges will base Awards on the 6th Edition generally but will cite more than the 6th Edition if the evidence is persuasive. We also expect that in many cases a judge might cite all of the ratings in the record, regardless of edition, if the judge gives equal weight to ratings submitted by both parties.
Since the Supreme Court held that use of the 6th Edition conforms to the Kansas constitution, we think it is no longer necessary to request ratings based on the 4th Edition of the Guides. We do recommend ensuring that a rating physician clearly notes they based their rating on the 6th Edition and competent medical evidence.
If you have any questions about the impact of this decision or the use of the AMA Guides to Impairment in obtaining impairment ratings, please email or call one of our Kansas attorneys at 816-761-3915.