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Johnson v. U.S. Food Service

Court of Appeals of Kansas

August 3, 2018

Howard Johnson III, Appellant,
v.
U.S. Food Service, and American Zurich Insurance Co., Appellees.

         SYLLABUS BY THE COURT

         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."

         2. Under the Fourteenth Amendment of the United States Constitution, no State shall "deprive any person of life, liberty, or property without due process of law."

         3. The Legislature may substitute a statutory remedy for one available at common law. But due process requires that the substitute provides an adequate remedy for the common-law remedy that has been abolished.

         4. Once the Legislature has established a substitute remedy, it cannot constitutionally proceed to emasculate the remedy by amendments to the point that it is no longer a viable substitute remedy.

         5. The Kansas Workers Compensation Act provides an administrative procedure for providing compensation to injured workers in exchange for the relinquishment of the injured worker's common-law right to sue a negligent employer in tort for damages.

         6. When our Legislature enacts changes in our Workers Compensation Act, for the changes to satisfy the constitutional requirement of due process (1) the changes must be reasonably necessary in the public interest to promote the general welfare of the people of Kansas, and (2) the Act in its currently modified form must continue to provide an adequate substitute remedy for an injured worker's right to bring a common-law action for the recovery of damages.

         7. After the adoption in K.S.A. 2015 Supp. 44-510d(b)(23) and (b)(24) and K.S.A. 2015 Supp. 44-510e(a)(2)(B) of the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (6th ed. 2008) as the Guide to be used for measuring the permanent impairment of injured workers, our Kansas Workers Compensation Act no longer provides an adequate substitute remedy for injured workers who suffer a permanent impairment on or after January 1, 2015, and K.S.A. 2015 Supp. 44-510d(b)(23) and (b)(24) and K.S.A. 2015 Supp. 44-510e(a)(2)(B) violate the constitutional requirement for due process.

         8. Because K.S.A. 44-574(b) provides for the severability of a provision in the Kansas Workers Compensation Act which is found to be unconstitutional, the appropriate remedy in this case is to strike from K.S.A. 2015 Supp. 44-510d(b)(23) and (b)(24) and K.S.A. 2015 Supp. 44-510e(a)(2)(B), the provisions requiring the use of the Sixth Edition of the AMA Guides, thereby leaving the Fourth Edition of the AMA Guides as the applicable Guide in the evaluation of an injured worker's permanent impairment.

          Appeal from Workers Compensation Board.

          Mark E. Kolich, of Lenexa, for appellant.

          Michelle Daum Haskins, of Constangy, Brooks, Smith & Prophete, LLP, of Kansas City, Missouri, for appellees.

          Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, and Dwight R. Carswell and Bryan C. Clark, assistant solicitors general, for amicus curiae State of Kansas.

          Before McAnany, P.J., Leben and Schroeder, JJ.

          MCANANY, J.

         Our opinion in this workers compensation appeal follows on the heels of the recent opinion in Pardo v. United Parcel Services, 56 Kan.App.2d 1, P.3d (No. 116, 842 filed June 1, 2018). In Pardo, a panel of our court determined that the use of the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008) as mandated by K.S.A. 2015 Supp. 44-510d(b)(23) was unconstitutional as applied to Pardo, an injured worker. 56 Kan.App.2d at 25. Today, we are asked to declare that the use of the Sixth Edition of the AMA Guides is unconstitutional on its face.

         Factual and Procedural History of Johnson's Injury Claim

         On October 16, 2015, Howard Johnson, who had been employed by U.S. Food Service since 2002 as a delivery driver, suffered an on-the-job injury to his neck when he tried to dislodge a partially frozen trailer door at work.

         Later that month, Dr. Harold Hess, a neurosurgeon, examined Johnson for the first time. Johnson complained of neck and left arm pain along with numbness and weakness in his left arm. Dr. Hess ordered an MRI scan of Johnson's neck which disclosed a spinal cord compression due to disc herniations at levels C5-C6 and C6-C7. Physical findings confirmed this injury. Dr. Hess diagnosed Johnson with cervical myeloradiculopathy.

         On November 17, 2015, Johnson filed a claim for workers compensation benefits.

         In January 2016, Dr. Hess operated on Johnson's neck. He removed the disc material at C5-C6 and C6-C7 and replaced it with bone from a cadaver in order to "create a fusion across the two vertebral bodies, across the disc space." He also screwed a metal plate into the vertebrae as a temporary stabilizer.

         On April 15, 2016, Johnson was released to return to work, but he continued to experience symptoms from the injury to his neck and has modified the way he performs his duties to accommodate his injury.

         Dr. Hess used the Sixth Edition of the AMA Guides in rating Johnson's permanent impairment at 6% of the whole person. Dr. Hess noted that if he had used the Fourth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995), which had been in effect until January 1, 2015, Johnson's rating would have been 25%. Dr. Hess testified that he believed that the 25% impairment rating was representative of Johnson's true impairment considering his loss of range of motion and his potential need for future surgery. He explained that 20% to 30% of fusion patients experience accelerated degeneration of adjacent discs in the neck within 10 years and require additional surgery.

         Dr. Hess has been performing cervical fusions since 1988. He testified that other than the use of cervical plates that began in the 1990s, there has been no change in the surgical technique for cervical fusions, and the expected surgical outcome remains the same. According to Dr. Hess, there have been no advancements in medical treatment or science that would warrant the lower impairment ratings provided in the Sixth Edition of the AMA Guides.

         Dr. Preston Brent Koprivica, a physician with an expertise in occupational medicine, testified that he has been performing independent medical evaluations for more than 30 years using the Third, Third Revised, Fourth, and Sixth Editions of the AMA Guides. He stated that all versions of the AMA Guides before the Sixth Edition specify a minimum of 25% impairment rating for an injury similar to Johnson's. He agreed with Dr. Hess that Johnson's impairment rating would have been a minimum of 25% under the Fourth Edition. Dr. Koprivica testified:

"[I]n his case he's had damage to his spinal cord. That's what the myelopathy part that Dr. Hess was talking about in his treatment record and deposition testimony is referring to. So structurally there's been damage to his spinal cord. Now, he's recovered neurologically, which is what you hope for, but there's still some permanent damage there. That's of significance.
"The second thing that I think is of great significance is the spine has been permanently structurally changed. In order to do your treatment you've changed the original anatomic makeup of the spine. Two motion segments no longer move. That's what a fusion is. You prevent movement at those motion segment levels.
"The problem with that is that what's observed in that patient population is that adjacent segments to the fused segments break down. They have an accelerated degeneration that occurs and those structural changes are of significance. They get changes in their facet joints, get greater arthritis, they get ligament changes in terms of hypertrophy of those ligaments trying to absorb forces.
"That's what your body does whenever you're put under unusual stresses. You try to adapt and your body will adapt for that by increasing the size of the ligament. But that has an implication. It takes up space in the spinal canal area. It causes narrowing. The discs at those motion segments adjacent degenerate and part of that degeneration process is there's a much greater propensity to herniate."

         Dr. Koprivica opined that there is a 25% to 30% probability that Johnson will need further surgery within 10 years. He concluded that 25% is representative of Johnson's true impairment rating given the severity of his injury. According to Dr. Koprivica, there is no scientific support for the reduced ratings in the Sixth Edition of the AMA Guides, as there has been no progression of medical knowledge, technology, or skill which would account for or justify the lower ratings. Dr. Koprivica stated that the ratings represent a consensus of opinion of a small committee of physicians.

         If Johnson's impairment had been calculated under the Fourth Edition of the AMA Guides, his award for a 25% impairment would have been $61, 713.70. But under the Sixth Edition of the AMA Guides, Johnson's impairment rating was only 6%, for an award of $14, 810.80. Had Johnson been injured before January 1, 2015, rather than nine months later, the award for his impairment would have been nearly $47, 000 greater.

         Attorney Jeff Cooper, a workers compensation practitioner, testified about major proposed changes to the Workers Compensation Act (Act) before 2011:

"Well, for the last I would say eight years before 2011, there had been a series of bills proposed in the legislature, all of which were designed to reduce benefits to injured workers. It was Senate Bill 418 and Senate Bill 181, I believe were the numbers in corresponding years. We had been able on behalf of injured workers, and I testified on behalf of KTLA, we'd been able to avoid some of those draconian measures against injured workers because we had some moderate Republicans in the Senate that generally were not real eager to disadvantage injured workers in the state of Kansas, so we'd been able to basically avoid those changes being made.
"As you may recall, in 2010 there was an election in Kansas and the Kansas Chamber of Commerce made an organized effort to get all those moderates replaced on the Senate and with the exception of maybe one moderate senator out of Topeka, they were successful in all those endeavors.
"So the landscape had changed from the standpoint of what we perceived to be a worker friendly or at least a worker neutral Senate to one that was no longer friendly to workers, and also we had large Republican majorities in the House that were similarly situated and had campaigned on changing workers' compensation benefits.
"So the meeting was held because there were proposed major changes to the Workers' Compensation Act in Kansas. There were rumors of going to a Texas system and those kind of things, and the informal meeting was had basically to try to work out something that would be at least fair to injured workers."

         According to Cooper, an agreement was reached during the 2011 negotiations among a number of groups with an interest in workers compensation-a group that drafted the proposed 2011 changes-that any changes to the Act would not include a change in the method for determining the extent of impairment, and both sides agreed that the Fourth Edition of the AMA Guides would continue to be used. Of course, the final decisions remained the prerogative of the Legislature and the Governor, not these groups. And two years later, the Legislature amended K.S.A. 44-510e and adopted the Sixth Edition of the AMA Guides for all injuries sustained after January 1, 2015.

         Following the final hearing on Johnson's claim, the administrative law judge (ALJ) awarded $14, 804.70 for Johnson's 6% impairment rating under the Sixth Edition of the AMA Guides. The Board affirmed. Neither the ALJ nor the Board addressed Johnson's constitutional issue because they lacked the jurisdiction to do so.

         Johnson's appeal brings the matter to us. The sole issue on appeal is the constitutionality of the requirement in the 2013 amendment to K.S.A. 44-510e that permanent impairment ratings for workers injured on or after January 1, 2015, be calculated using the Sixth Edition of the AMA Guides.

         Johnson's Claim on Appeal and Our Standards for Appellate Review

         Johnson contends that the change in K.S.A. 2015 Supp. 44-510e which requires the use of the Sixth Edition of the AMA Guides violates § 18 of the Kansas Constitution Bill of Rights and the Fourteenth Amendment of the United States Constitution. He claims that the reduction in workers compensation awards diminishes or abrogates a remedy protected by due process without promoting the general welfare and without providing an adequate substitute remedy.

         Determining a statute's constitutionality is a question of law over which we have unlimited review. We presume statutes are constitutional and resolve all doubts in favor of a statute's validity. We interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the Legislature's apparent intent. Before striking down a statute as unconstitutional, the violation must be clear. Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).

         The History of the Workers Compensation Scheme in Kansas and Its Constitutional Foundations

         The statutory provision at issue in this case is found in K.S.A. 2015 Supp. 44-510e, which provides:

"(a) In case of whole body injury resulting in temporary or permanent partial general disability not covered by the schedule in K.S.A. 44-510d, and amendments thereto, the employee shall receive weekly compensation as determined in this subsection during the period of temporary or permanent partial general disability not exceeding a maximum of 415 weeks.
. . . .
(2)(B) The extent of permanent partial general disability shall be the percentage of functional impairment the employee sustained on account of the injury as established by competent medical evidence and based on the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, based on the sixth edition of the ...

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