Is the Kansas Challenge to the AMA Guides Good Public Policy?
We described two weeks ago how Kansas state court of appeals has ruled portions of the Kansas workers’ compensation act unconstitutional. In that case, Johnson v. U.S. Food Service a three-judge court of appeals held that the statute that required the state to follow the AMA’s “Guides to Evaluation of Permanent Impairment, Sixth Edition” unconstitutionally limited an injured worker’s right to a legal remedy for an on-the-job injury. The court wrote:
The gradual erosion of the fair exchange between rights under the Act and common-law rights to tort recovery have, for the injured worker, amounted to death by a thousand paper cuts. What is the last slice that tips the balance from a fair exchange of rights and remedies to one that is unconstitutionally inadequate from the injured worker’s point of view?
While our Supreme Court declared that the tipping point had not been reached with the 1993 amendments, we conclude that the tipping point has now been reached with the adoption of the Sixth Edition of the AMA Guides. We do not opine on the constitutionality of the Act as amended in 2011, though it is clear that those amendments at least moved the Act closer to the tipping point. But adoption of the Sixth Edition of the AMA Guides leaves the injured worker who suffers a permanent impairment in a situation not unlike that of Monty Python’s Black Knight.
The Johnson case joins a number of national decisions that address constitutional challenges to the grand bargain as well as to the use of the AMA Guides. Thomas A. Robinson, a national commentator on workers’ compensation issues, wonders whether the trend is a good idea.
I appreciate it when a judge or justice takes the time to write an imaginative opinion. One such opinion was penned recently by Judge Patrick McAnany, of the Kansas Court of Appeals, in Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018). McAnany’s carefully crafted opinion employs rich metaphor—“death by a thousand paper cuts” [Opinion ¶ 22]. It also references comedic cinema—Monty Python’s famous “Black Knight” scene. Judge McAnany’s nod to powerful stage drama—Arthur Miller’s Death of a Salesman, has me wondering, however, if the judge might prefer that we jettison the entire workers’ compensation scheme and just move back to the days in which standard tort law governed the world of work-related injuries. If we throw out the proverbial bath water, what happens to the baby?
Robinson’s article reminds courts and readers that the “adequacy of benefits” is only part of the balancing equation in the grand bargain. Workers’ compensation also provides benefits promptly and certainly, and without regard to the fault of the injured worker. All too often system participants forget that there is value in that calculus as well.
Read the whole thing.
FOLIO
