BY THE COURT
Section 18 of the Kansas Constitution Bill of Rights
guarantees an individual's right to a remedy: "All
persons, for injuries suffered in person, reputation or
property, shall have remedy by due course of law." It
has long been held that the words "remedy by due course
of law" mean the reparation for injury, ordered by a
tribunal having jurisdiction, in due course of procedure and
after a fair hearing.
Section 5 of the Kansas Constitution Bill of Rights states:
"The right of trial by jury shall be inviolate."
Fourteenth Amendment to the United States Constitution
states, in pertinent part, that no State shall "deprive
any person of life, liberty, or property without due process
of law." Due process emphasizes fairness between the
State and the individual dealing with the State, regardless
of how other individuals in the same situation may be
one has a vested right in common-law rules governing
negligence actions which would preclude substituting a viable
statutory remedy for one available at common law. The
Legislature can modify the common law so long as it provides
an adequate substitute remedy for the right infringed or
5. If a
remedy protected by due process is abrogated or restricted by
the Legislature, such a change is constitutional if the
change is reasonably necessary in the public interest to
promote the general welfare of the people of the state and
the Legislature provides an adequate substitute remedy to
replace the restricted remedy.
first step in determining if the Legislature has provided an
adequate substitute remedy is whether the change is
reasonably necessary in the public interest to promote the
general welfare of the people of the state. Another way to
state this test is whether the legislative means selected has
a real and substantial relation to the objective sought.
Under this reasonable basis test, it is unnecessary to
ascertain the specific purpose the Legislature espoused, if
any, in establishing the challenged statute because the
Legislature is not required to articulate reasons for
enacting a statute. It is entirely irrelevant for
constitutional purposes whether the conceived reason for the
challenged statute actually motivated the Legislature.
Accordingly, to supply a rationalization for a challenged
statute, all the State has to do is offer any set of facts
which reasonably may be conceived to justify it.
if the modification of a remedy is consistent with public
policy, this does not necessarily satisfy due process
concerns. In order to insure due process under the second
step, the Legislature is required to provide an adequate
substitute remedy when a common-law remedy is modified,
restricted, or abolished. If a subsequent legislative change
reduces the remedy or makes the remedy more difficult to
obtain, a court must determine if that revision no longer
provides an adequate substitute remedy, thereby making the
quid pro quo inadequate and violating due process.
Major statutory enactments establishing a broad,
comprehensive statutory remedy or scheme of reparation in
derogation of a previously existing common-law remedy may be
subsequently amended or altered without each such subsequent
change being supported by an independent and separate quid
pro quo. In considering the adequacy of the quid pro quo, no
hard and fast rule can apply to all cases.
There is a limit which the Legislature may not exceed in
altering the statutory remedy previously provided when a
common-law remedy was statutorily abolished. The Legislature,
once having established a substitute remedy, cannot
constitutionally proceed to emasculate the remedy, by
amendments, to a point where it is no longer a viable and
sufficient substitute remedy.
K.S.A. 2014 Supp. 44-510d(b)(23) is unconstitutional as
applied to this claimant-employee because it prohibits the
employee from recovering an award for his permanent partial
disability from a new and distinct work-related injury. There
can be no adequate substitute remedy for an employee's
right to sue his employer for negligence and potentially
recover an award at common law, when there is no remedy
provided the employee under the Workers Compensation Act.
Under the facts of this case, severing the unconstitutional
portion of K.S.A. 2014 Supp. 44-510d(b)(23) is the most
appropriate remedy as it best preserves the Legislature's
intent, renders the statute constitutional in part, provides
the most guidance for the administrative proceedings, and
supplies the injured employee with an adequate remedy.
from Workers Compensation Board.
L. Mark, of Mark & Burkhead, of Mission, for appellant.
Douglas M. Greenwald, Karl L. Wenger, and Frederick J.
Greenbaum, of McAnany, Van Cleave & Phillips, P.A., of
Kansas City, for appellees.
E. C. Bailey, of Polsinelli PC, of Kansas City, Missouri, for
amicus curiae The Kansas Chamber of Commerce.
William Rich, of Washburn University School of Law, Topeka,
and Jan L. Fisher, of McCullough, Wareheim & LaBunker, of
Topeka, for amici curiae Professors William Rich and Jan L.
R. Carswell and Bryan C. Clark, assistant solicitors general,
Jeffrey A. Chanay, chief deputy attorney general, and Derek
Schmidt, attorney general, for amicus curiae State of Kansas.
Powell, P.J., Standridge, J., and Stutzman, S.J.
Pardo brings this appeal challenging the constitutionality of
K.S.A. 2014 Supp. 44-510d(b)(23) as applied to his workers
compensation claim. This statute mandates that for all
work-related injuries after January 1, 2015, the Sixth
Edition of the American Medical Association (AMA) Guides to
the Evaluation of Permanent Impairment (6th ed. 2008) must be
used in rating a work-related injury to determine a
worker's amount of compensation. In 2013 Pardo injured
his shoulder in a work-related accident. In March 2015 Pardo
injured the same shoulder in another work-related accident.
This second injury was unrelated to his first injury and was
located in a completely different place on his rotator cuff.
Both his own doctor and his employer's doctor determined
that Pardo had an additional permanent partial impairment
above and beyond the impairment rating he received from his
2013 rotator cuff injury. However, the Sixth Edition mandates
that if an individual previously has received an impairment
rating on a shoulder, then no subsequent impairment rating
may be assessed on the same shoulder. This requirement forced
both doctors to issue a 0% impairment rating on Pardo's
new and distinct shoulder injury even though they both
testified that this was a medically inaccurate and
insufficient rating for Pardo's new injury. An
administrative law judge (ALJ) for the Division of Workers
Compensation issued a zero award for Pardo's new
permanent partial impairment as required by the Sixth
Edition, and the Workers Compensation Board (Board) affirmed
reasons we more fully explain below, we agree with Pardo that
as applied to him, mandatory use of the Sixth Edition is
unconstitutional as it denies him a remedy guaranteed by the
Kansas Constitution. Accordingly, we reverse the Board's
denial of an award for Pardo's permanent partial
impairment and remand the matter for reconsideration under
the Fourth Edition of the AMA Guides to the Evaluation of
Permanent Impairment (4th ed. 1995).
and Procedural Background
facts in this case are not disputed. Pardo has been employed
by United Parcel Service, Inc. (UPS) for 13 years and
continues to work for UPS today. As a part of his job duties
Pardo operates tractor-trailers, picks up and delivers loads,
and works in the yard with a spotter. A spotter is a piece of
equipment that remains in the yard and is used to move
trailers to different locations onsite.
March 18, 2015, in the course of his job duties, Pardo was
climbing onto the spotter when he slipped on oil and grease
buildup. Pardo was holding onto the spotter's railing
with his left arm when he fell, jerking his left arm. Pardo
testified he felt a pop and pull in his left shoulder. Pardo
immediately reported the incident and was sent for medical
had previously injured his left shoulder in the course of his
job duties in July 2013. As a result of that injury, Pardo
underwent arthroscopic surgery with board certified
orthopedic surgeon Dr. Mark Rasmussen on August 29, 2013. Dr.
Rasmussen repaired a partial thickness rotator cuff tear and
performed an extensive labrum repair. Dr. Rasmussen released
Pardo to full work duty and assessed an impairment rating of
10% to Pardo's left shoulder based on the labral
pathology and the partial thickness rotator cuff tear. This
injury was settled for an agreed-upon 15% permanent partial
impairment rating even though the UPS doctor assigned
Pardo's shoulder a 10% impairment rating.
the March 2015 accident, Pardo was referred to KU MedWest and
was examined by Dr. Rasmussen on April 8, 2015. Dr. Rasmussen
noted complaints of pain in the subacromial region of
Pardo's shoulder and ordered an MRI. This MRI was
inconclusive. Dr. Rasmussen explained an MRI is often
inconclusive when a patient had prior surgery because
"there can be different pathology abnormalities that are
related to previous surgeries." As treatment, Dr.
Rasmussen provided a steroid injection in Pardo's
shoulder; however, this injection provided minimal relief.
Dr. Rasmussen performed a repeat arthroscopic procedure on
June 4, 2015.
this procedure, Dr. Rasmussen found labral pathology in
Pardo's left shoulder and estimated over half of this
pathology was related to Pardo's 2013 surgery. Dr.
Rasmussen also found a new partial thickness rotator cuff
tear. He testified that, within a reasonable degree of
medical certainty, this tear was a new finding and related to
Pardo's March 2015 accident. He explained this new tear
was in a different location than the one repaired in 2013 and
"was not in direct connection with the original
tear." Dr. Rasmussen surgically repaired the new tear in
addition to performing an acromioplasty to help resolve
impingement of the rotator cuff. In addition to the rotator
cuff injury, Pardo also suffered a labrum tear, which was
also surgically repaired, and bicep tendinitis.
continued to follow up with Dr. Rasmussen after surgery.
Although Pardo continued to complain of pain and limited
range of motion, Dr. Rasmussen released him to full work duty
on August 26, 2015. Pardo's range of motion continued to
diminish, and he returned to Dr. Rasmussen in October 2015.
Dr. Rasmussen observed that Pardo's range of motion
findings at this exam were inconsistent with his previous
range of motion measurements and noted this discrepancy could
have been because Pardo was performing relatively strenuous
again returned to Dr. Rasmussen in November 2015. Pardo's
range of motion was greatly improved but was not normal.
Pardo complained of hand pain, some headaches, and continuing
left shoulder pain, particularly with overhead activity. Dr.
Rasmussen believed the cause of Pardo's continuing pain
was the March 2015 work accident. Dr. Rasmussen released
Pardo at maximum medical improvement (MMI) on November 23,
2015, noting that Pardo felt he was ready to be released.
December 17, 2015, at Pardo's counsel's request, Dr.
P. Brent Koprivica examined Pardo. The parties stipulated to
the admission of Dr. Koprivica's report and records into
evidence. According to Dr. Koprivica, Pardo complained of
significant ongoing symptoms with his left shoulder,
including loss of strength, cramping, straining, and
significant ongoing limited motion. Dr. Koprivica reviewed
Pardo's medical records and history and performed a
physical examination. He noted Pardo was cooperative and
demonstrated appropriate pain behaviors and wrote:
"There is pain and weakness in the left shoulder during
the clinical examination. I would note that there is
significant variation in the demonstrated motion today
compared to the motion measurements documented by Dr.
Koprivica found Pardo's March 2015 work injury to be the
prevailing factor in Pardo's new left shoulder structural
injury, specifically the new partial thickness rotator cuff
tear for which arthroscopy was performed. Dr. Koprivica found
Pardo to be at MMI but indicated he would need future medical
treatment. Dr. Koprivica wrote:
"Of note, Mr. Pardo clearly has new objective structural
physical impairment based on evidence at the time of surgery
of new partial-thickness rotator cuff injury that has been
treated. There is new impact on activities of daily living
based on this, in terms of limiting his tolerance to
activities requiring use of his left shoulder.
"Despite this fact of clear-cut loss of ability to do
activities of daily living, it is outlined on Page 23 in the
American Medical Association, Guides to the Evaluation of
Permanent Impairment, Sixth Edition, 'Rating
permanent impairment by analogy is permissible only if The
Guides provide no other method for rating objectively
"In the case, the American Medical Association,
Guides to the Evaluation of Permanent Impairment,
Sixth Edition, does specifically address Mr. Pardo's
clinical situation. As Dr. Rasmussen has outlined throughout
the contemporaneous records, the presentation of impairment
based on the March 18, 2015, injury suggested rotator cuff
etiology. At the time of surgery, a partial-thickness rotator
cuff tear was identified.
"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. 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. According to the American
Medical Association, Guides to the Evaluation of
Permanent Impairment, Sixth Addition, a zero (0) percent
impairment is assigned based on strict interpretation of the
"If one looked at an assignment of impairment using the
American Medical Association, Guides to the Evaluation of
Permanent Impairment, Fourth Edition, the typical
impairment rating, excluding the prior fifteen (15) percent
impairment, would be an additional ten (10) percent upper
extremity impairment based on this injury.
"Obviously, this is going to be upsetting for Mr. Pardo
in light of the fact that he has suffered a significant new
injury that has necessitated surgery with objective
structural pathology being identified. He is continuing to be
impacted based on reduced ability to perform activities of
daily living, but unfortunately, the new statutes requiring
the use of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, Sixth Edition,
allow him no recovery for permanent impairment."
February 22, 2016, Dr. Rasmussen also provided an impairment
rating. Using the Sixth Edition, he determined Pardo
sustained a 5% impairment to the left upper extremity. Dr.
Rasmussen testified the rating related to the March 2015
accident was over and beyond the 10% he assessed for the 2013
accident. Dr. Rasmussen explained the 5% assessment was based
on Pardo's partial thickness rotator cuff tear requiring
surgery and continuing pain.
Rasmussen admitted, however, that a strict interpretation of
the Sixth Edition resulted in a 0% impairment for Pardo
because he had received a previous impairment rating. Even if
Pardo had no previous impairment, the Sixth Edition would
provide a 0% to 2% impairment for Pardo's partial
thickness rotator cuff tear and resulting surgery, which Dr.
Rasmussen opined was too low. Dr. Rasmussen testified he did
not believe 0% to be a fair representation of Pardo's
impairment. Further, he stated the Sixth Edition allows only
for the most significant pathology to be rated, with a
"very small amount" of modification allowed related
to any secondary pathology. Dr. ...