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Monday, October 14, 2019

Kansas court rules use of AMA guide is unconstitutional in case of twice-injured UPS driver

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By Karen Kidd | Jun 15, 2018


TOPEKA, Kan. (Legal Newsline) – Use of an American Medical Association guide to rate disability for work-related injuries is unconstitutional as applied to a case, the Kansas Court of Appeals ruled recently in the case of a parcel delivery driver who twice injured his shoulder.

The appeals court said its 33-page decision June 1 that its ruling applied only in the case of UPS driver Francisco Pardo, who had appealed a previous Workers' Compensation board denial in his case. In his appeal, Pardo challenged the constitutionality of a state statute that requires all work-related injuries refer to the sixth edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment for rating those injuries to determine compensation.

"For reasons we more fully explain below, we agree with Pardo that as applied to him, mandatory use of the sixth edition is unconstitutional as it denies him a remedy guaranteed by the Kansas Constitution," the Appeals Court said in its decision. 

"Accordingly, we reverse the Board's denial of an award for Pardo's permanent partial impairment and remand the matter for reconsideration under the Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment."

The appeals Ccurt's decision reversed an earlier order by the Kansas Workers' Compensation Board, saying the state statute is unconstitutional as pertains to Prado's case because it bars him from recovering an award for his allegedly permanent partial disability following his re-injury of his shoulder. Prado, who still is employed by UPS, injured his left shoulder twice while on the job, first in July 2013 and again in March 2015, according to the factual and procedural background portion of the Appeals Court's decision.

Prado's first shoulder injury was rated under the fourth edition of the AMA guide, for which he received compensation. However, he received nothing under the sixth edition for his second shoulder injury because that edition "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," the appeals court decision said.

Courts in Florida, Oklahoma and Utah had previously ruled portions of Workers' Compensation statutes in those states to be unconstitutional, and the appeals court case has been closely watched to see if Kansas would go the same way.

The Kansas Workers' Compensation Board previously declined to rule on the constitutionality of the state statute in the Prado case. 

"It is true claimant was afforded no economic recovery for permanent impairment stemming from his compensable workers compensation injury, other than payment of medical and temporary total disability benefits," the board said in its previous ruling

"However, the Board is not a court established pursuant to Article III of the Kansas Constitution and does not have the authority to hold an Act of the Kansas Legislature unconstitutional. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. The Board does not have jurisdiction to rule on claimant's constitutionality issues."

Following the board's ruling, the Kansas Supreme Court denied Pardo's motion to transfer his appeal to that court in February 2017.

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