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Pardo v. United Parcel Service

Court of Appeals of Kansas

June 1, 2018

Francisco Pardo, Appellant,
United Parcel Service and Liberty Mutual Insurance Corporation, Appellees.


         1. 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.

         2. Section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall be inviolate."

         3. The 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 treated.

         4. No 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 abolished.

         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.

         6. The 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.

         7. Even 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.

         8. 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.

         9. 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.

         10. 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.

         11. 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.

          Appeal from Workers Compensation Board.

          Keith 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.

          Miriam 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. Fisher.

          Dwight 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.

          Before Powell, P.J., Standridge, J., and Stutzman, S.J.

          Powell, J.

         Francisco 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 this award.

         For 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).

         Factual and Procedural Background

         The 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.

         On 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 treatment.

         Pardo 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.

         Following 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.

         During 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.

         Pardo 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 work duties.

         Pardo 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.

         On 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. Rasmussen."

         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 identifiable impairment.'
"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 text.
"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."

         On 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.

         Dr. 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. ...

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