The Kansas Supreme Court undid one small part of Sam Brownback’s legacy

The Kansas Supreme Court ruled on Friday that adoption of the American Medical Association Guides to Permanent Impairment, Sixth Edition (AMA Sixth) to pay permanent injuries under their workers’ compensation act violated constitutional rights to due process because it gave injured workers an inadequate remedy for work injuries.

The decision in Johnson v. US Food Service came on the heels of a recent Oklahoma decision that upheld the constitutionality of the AMA Sixth in that state’s workers’ compensation law. Injured workers in Kansas were likely helped by the Kansas applying heightened scrutiny in assessing a due process violation rather than applying what amounts to rational basis scrutiny like the Oklahoma court did in upholding their use of the AMA Sixth.

The Kansas court also seemed to be persuaded by findings of fact and legislative history about the problems with the AMA Sixth in how it compensates work injuries. The court was particularly persuaded by findings that the AMA Sixth lead to lower impairment ratings because it measured impairment based on inability to do general life activities rather than activities related to working. The Kansas decision throwing out the use of the AMA 6^th will likely be persuasive to trial courts in other states when deciding whether impairment under the AMA 6^th sufficiently compensates injured workers. 

The decision was also premised on the fact that injured workers give up the right to a trial by jury to pursue a tort claim against the employers to receive workers’ compensation benefits. According to the Kansas court, compensating employees under the AMA 6^th when combined with other recent changes to Kansas workers’ compensation law meant that employees were giving up too much in exchange for not being able to sue their employers and have a trial by jury.

Last month, I posted “Appellate courts aren’t going to save workers’ compensation.” Maybe I was too pessimistic in that assessment considering Johnson case. But a closer reading of the Johnson case shows my thesis is still sound. The Kansas court went through an exhaustive list of anti-worker reforms made by the Kansas legislature in 2011 and 2013 to that state’s workers’ compensation laws.  With the exception of using the AMA 6th, those anti-worker reforms are still law in Kansas. I hope the decision in Johnson will help advocates for injured workers rollback other negative changes made to workers’ compensation law in Kansas. But the changes to Kansas’ workers’ compensation laws came through the political arena and victories in the political arena are the only sure way to insure fair compensation for injured workers in Kansas and in the rest of the country.

I agree with the outcome and most of the reasoning supporting the Johnson decision. But I disagree with the court’s literary flourish arguing that injured workers aren’t heard in adminisatsrive hearings or bench  trials. The majority of my court room experience comes in what amount to bench trials in the Nebraska Workers’ Compensation Court. In my experience the injured worker gets to tell their story and — just as important – management witnesses are forced to answer for their treatment of injured workers as it relates to issues being tried. At least in Nebraska, trials in worrkers’ compensation cases can address that emotional need for justice outside fiancial compensation. But for most people, the finanical outcome of a case is more important than the process used to obtain the outcome.

Thomas Robinson, editor of the leading treatise on workers’ compensation law, stated the Kansas court’s focus on assigning fault for an injury misses the point of workers’ compensation which means defined compensation for a work injury regardless of fault. I agree with this point. I’ve written about the role of fault in the suppodedly no fault world of workers’ compnesation. I will be interested to read Robinson’s take on fault and workers’ compensation.