The Kansas Court of Appeals issued a decision last week that could have significant repercussions for the state. Just as importantly, it may also provide a glaring example of why we need to rethink workers' compensation, strip it to its core and build anew to create a system that proffers a true culture of recovery.
The decision, in Pardo vs. UPS, reverses an order of the Workers' Compensation Board and declares the use of the AMA Guides 6th Edition unconstitutional for this particular claimant. Specifically, the court found that, “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.” The case revolved around a second, yet unrelated shoulder injury suffered by the employee in question. The first shoulder injury had been rated under the AMA Guides to the Evaluation of Permanent Impairment 4th Edition, and he was awarded a 15% PPD rating. His second shoulder injury, however, was rated under the AMA Guides to the Evaluation of Permanent Impairment 6th Edition, which “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.” He therefore received a 0% rating on the second injury.
Even though the employee had returned to his job and not experienced any loss in wage earning capacity, the court determined he was entitled to additional benefits under Kansas statute. Specifically, the court wrote, “Pardo's collection of temporary total disability and medical expenses for his current injury is not adequate substitute compensation. The Kansas Supreme Court has repeatedly stressed that providing compensation for permanent partial impairment is an, if not the, essential purpose of the Act.”
So, the ESSENTIAL PURPOSEof the Kansas Workers' Compensation Act is to provide compensation for permanent partial impairment. And here I thought it was to help injured workers recover and return to work. Considering that a minority of claims ever deal with PPD, the system is clearly not living up to its mandate.
It was a ridiculous observation for the court to make.
I'm not alone in this viewpoint. Mark Walls, VP of Communications & Strategic Analysis for Safety National picked up on the very same sentiment. He made the following observation on LinkedIn:
Essentially, the Court ruled that the change to AMA 6th edition for impairment evaluations was unconstitutional because it resulted in lower impairment ratings. They felt the lower PPD benefit undermined the grand bargain of workers' comp because it took benefits away from injured workers. Think this through. The purpose of medical treatment is to restore function. The AMA 6th edition recognized this and changed the foundation of impairment ratings from the diagnosis to actual objective impairment. In other words, if you had a knee surgery and post-surgery you are back to full strength, range of motion, etc there is no "impairment" because the treatment did what it was supposed to do. The Kansas courts have now ruled that better medical outcomes for injured workers are unfair because they get less PPD because they have less impairment.
As to the courts comment regarding the “essential purpose of the act,” Walls said, “In other words, TTD and medical expenses alone are not an adequate substitution for the tort remedy given up by the grand bargain of workers' comp. I have argued previously that PPD is essentially a tort element in workers' comp that would be better replaced by wage loss.”
What is potentially disturbing about this decision is that establishing disability is viewed as more critical by this court than proper medical care using the latest scientifically supported guidelines. There are not many other areas where we choose to ignore the latest technologies and innovations instead opting for older and outdated standards. Perhaps it would be best to keep rolling back those standards until we find something that works for the legal community; we could use the Impairment Guides from 1792, a time, as Walls says, that “used leeches and bleeding” to treat the sick and injured.
But again, this was not a medical decision. It was a legal one determining the best guidelines for medical care. It was a legal decision that virtually mandates disability. And it was a clarion call to reform our system at the outset.
In this case, the employee had returned to work at his former job. He complained of some remaining pain and less mobility (although two doctors tests produced different results) but experienced no loss of earning capacity. If the justices view the current statutory system as one that must provide permanent partial benefits regardless of outcome, then it is time to scrap that statutory system. Instead, legislators should create a system focused on restoring function and aiding in recovery.
Focusing on recovery should be the truly essential purpose of any act. We should not be legislating or adjudicating disability where none has to exist. That is what makes this Court of Appeals decision decidedly unappealing.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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