On August 3, 2018, in Johnson v. US Food Service, the Court of Appeals of Kansas declared unconstitutional the workers compensation statutes requiring use of the 6th Edition of the American Medical Association (AMA) Guides to assign disability ratings for permanent impairment. The court found that, with the adoption of the AMA Guides' 6th Edition, the Kansas Workers Compensation Act violates due process and no longer provides an adequate remedy for injured workers who suffer permanent impairment on or after January 1, 2015. The court struck the statutory provisions mandating use of the 6th Edition, effectively reinstating the AMA Guides' 4th Edition.
This decision could be appealed to the Kansas Supreme Court. NCCI will monitor for further developments and any potential impact on the workers compensation system.
Texas — Air Ambulance
On August 2, 2018, the federal District Court for the Western District of Texas held, in Air Evac EMS, Inc. v. State of Texas, Department of Insurance, that the federal Airline Deregulation Act (ADA) preempts the Texas Workers' Compensation Act's restrictions on air ambulance rates and billing. The court concluded that because the ADA preempts, the state is prohibited from enforcing state laws limiting reimbursement amounts that workers compensation insurers pay for air ambulance services.
This decision could be appealed. NCCI will monitor for further developments and any potential impact on the workers compensation system.
On July 26, 2018, in an unpublished opinion, the Supreme Court of Nevada held in The Mirage Casino-Hotel, LLC v. Malita, that even if not raised in the initial pleadings, workers compensation exclusive remedy can be asserted as an affirmative defense to a tort action when the opposing party had reasonable notice and opportunity to respond, and prejudice would not follow. While the defendant in this case did not raise the exclusive remedy defense until three years into litigation, the court reasoned that the affirmative defense was not waived because the plaintiff failed to establish prejudice, as there was time remaining for discovery, and Nevada case law allows assertion of an affirmative defense as late as a post-trial motion.