Kansas appeals court overturns 2013 workers’ comp law

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Kansas Judicial Center, 301 SW 10th Ave., Topeka

TOPEKA – A three-judge panel of the Kansas Court of Appeals on Friday overturned a 2013 change in the state’s workers’ compensation law, calling the change unconstitutional because it too severely limits an injured worker’s right to obtain a legal remedy for an injury.

The case involved Howard Johnson III, 45, who injured his back while working at U.S. Food Service in October 2015.

Johnson had suffered an injury to his spine that required him to undergo surgery in which discs in his spine were fused together in two places, limiting his mobility. The doctor who performed that surgery said there was a 25-30 percent chance that he would require additional surgery within 10 years.

Johnson returned to work but soon started experiencing symptoms again. He then filed a workers’ compensation claim.

His injury occurred a little more than nine months after a new state law took effect under which the state started using a newer, updated version of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” known as the Sixth Edition, which greatly reduced the amount of settlements workers could be awarded.

That change had been the subject of intense debate in the Legislature for years because the newer edition provided for significantly smaller awards than the previous version. It wasn’t until after the 2012 elections, when most moderate Republican senators were defeated for re-election, that conservatives were able to push the new law through.

Lawmakers approved the change during the 2013 session. It took effect on Jan. 1, 2015.

Under the old law, the court noted, Johnson’s injury would have qualified as a 25 percent disability, and his award would have been $61,714. But under the new law, the injury was rated as only a 6 percent disability, and he was awarded only $14,811.

The court had previously held the 2013 law unconstitutional, but only as it applied to one particular worker. On Friday, though, the court held the law unconstitutional on its face, saying it violates both the Kansas Constitution’s Bill of Rights and the U.S. Constitution’s guarantee of due process.

Section 18 of the Kansas Bill of Rights states “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law,” and the 14th Amendment to the U.S. Constitution says no state may “deprive any person of life, liberty, or property without due process of law.”

The court noted that the Legislature may provide a substitute remedy in statute that would otherwise be available in common law, which is what Kansas and all other states have done with workers’ compensation laws.

But if the Legislature provides a substitute remedy, the court said, “it cannot constitutionally proceed to emasculate the remedy by amendments to the point that it is no longer a viable substitute remedy.”

Under common law in the United States, employers are generally responsible for injuries that their workers suffer on the job. But typically, workers had to sue in court to obtain a remedy, and there they had to prove that the employer was at fault, while the employer could argue that the worker was negligent.

In the early 20th century, though, states began adopting workers’ compensation laws as a way to avoid litigation and provide a standardized way of compensating injured workers, regardless of fault.

The laws require employers to carry an insurance policy, and they spell out a standardized way of measuring the level of an injury and how much the worker should be paid.

Kansas enacted its first workers’ compensation law in 1927. In Kansas and elsewhere, however, there has always been stiff competition between business groups, which lobby for restrictions in order to hold down the cost of insurance premiums, and labor interests, which lobby for the right of workers to be adequately compensated for their injuries.

That competition has been especially fierce in Kansas in recent years as conservative Republicans gained greater strength in the Legislature and, with the election of Sam Brownback in 2010, the governor’s office.

On Friday, though, the Court of Appeals said the 2013 Legislature overstepped its bounds.

“The Legislature went too far with the adoption of the Sixth Edition, and we agree that the Act no longer comports with due process for injured workers who sustain a permanent impairment as a result of an injury occurring on or after January 1, 2015,” the court stated.

The opinion was signed by Judges Patrick D. McAnany, Steve Leben and Kim R. Schroeder.

Kansas Attorney General Derek Schmidt’s office did not immediately say whether it plans to appeal the decision to the Kansas Supreme Court.

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