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."
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."
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.
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
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
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.
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.
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.
from Workers Compensation Board.
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.
McAnany, P.J., Leben and Schroeder, JJ.
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.
and Procedural History of Johnson's Injury Claim
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.
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
November 17, 2015, Johnson filed a claim for workers
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
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.
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
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.
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
"[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
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
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.
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
"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
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.
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.
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.
Claim on Appeal and Our Standards for Appellate Review
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.
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).
History of the Workers Compensation Scheme in Kansas and Its
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
. . . .
(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