Deron Butler v. The Goodyear Tire and Rubber Company
On Friday, May 28, 2021, the Kansas Workers Compensation Appeals Board (“The Board”) issued an opinion concerning the application of the AMA Guides, Sixth Edition and scheduled injuries per K.S.A. 44-510d(b)(23). Briefly, the Appeals Board affirmed ALJ Roth’s interpretation that Kansas law does not reference “competent medical evidence” and he was bound by the AMA Guides, Sixth Edition when assessing functional impairment under K.S.A. 44-510d(b)(23).
Facts
Deron Butler sustained a compensable work accident per Kansas Workers’ Compensation law on January 11, 2018. He hurt his right shoulder while working as a radial truck tire builder at Goodyear. After continued pain, Mr. Butler proceeded with an arthroscopic repair of a massive rotator cuff tear and extensive debridement performed by Dr. Michael Dempewolf. Dr. Dempewolf additionally performed a superior capsular reconstruction, a surgery performed for an irreparable rotator cuff tear. Mr. Butler proceeded with a functional capacity evaluation which provided permanent restrictions of no lifting more than 10 pounds overhead with the right arm and no lifting of more than 20 pounds overhead with both arms. On October 4, 2019, Dr. Dempewolf determined Mr. Butler had reached maximum medical improvement and he did not require any additional medical treatment.
Dr. Dempewolf provided two permanent partial impairment ratings to the right upper extremity at the shoulder level: (1) 20 percent impairment per the AMA Guides, Fourth Edition and (2) 7 percent impairment per the AMA Guides, Sixth Edition. Following an evaluation by Dr. William Hopkins, Dr. Hopkins additionally provided two impairment ratings to the right shoulder: (1) 26 percent impairment per the AMA Guides, Fourth Edition and (2) 16 percent impairment per the AMA Guides, Sixth Edition. Before reaching the Board, ALJ Roth held he was bound by the law to provide an opinion of permanent impairment per the AMA Guides, Sixth Edition. He provided a split of the AMA Guides, Sixth Edition ratings at 11 percent and awarded future medical treatment.
Mr. Butler continues to work at Goodyear in another position. He testified he was unable to perform his former job with his restrictions.
Law
As a preliminary matter, a scheduled injury is an injury to a particular body part (i.e. shoulder, forearm, hand) and the state provides a particular amount of weeks for each respective body part. When there are multiple injuries or the body part hurt is not on the “schedule,” it is considered a body as a whole injury. Kansas workers’ compensation law has separate statutes discussing scheduled (K.S.A. 44-510d) and whole body injuries (K.S.A. 44-510e). The Appeals Board provided in relevant part:
K.S.A. 44-510e(a)(B) provides:
The extent of permanent partial general disability shall be the percentage of functional impairment the employee sustained on account of the injury as established by competent medical evidence and based on the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, based on the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.
K.S.A. 44-510d(b)(23) states:
Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, shall be determined by using the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein.
In January 2021, the Kansas Supreme Court previously evaluated K.S.A. 44-510e(a)(B) and the application of the AMA Guides, Sixth Edition. Johnson v. U.S. Food Service, ___ Kan. ___, 478 P.3d 776 (2021). The Kansas Supreme Court reversed the Kansas Court of Appeals to uphold the constitutionality of the Kansas Workers Compensation Act and the determination of functional impairment per K.S.A. 44-510e(a)(B). The Kansas Court of Appeals had previously held the application of the AMA Guides, Sixth Edition was unconstitutional because it violated an injured workers’ due process to determine permanent partial disability with use of the AMA Guides, Sixth Edition. The Kansas Supreme Court used the doctrine of constitutional avoidance to interpret the plain language of K.S.A. 44-510e(a)(B). “The use of the phrase ‘based on’ indicates the Legislature intended the Sixth Edition to serve as a starting point for the more important and decisive ‘competent medical evidence.’” Ultimately, the Court held the percentage of functional impairment must always be proved by competent medical evidence.
Analysis
The Kansas Workers Compensation Appeals Board affirmed the language from K.S.A. 44-510e(a)(B) and K.S.A. 44-510d(b)(23) are distinct. Specifically, “The plain language of K.S.A. 44-510d(b)(23) requires the functional impairment to be based upon the Sixth Edition. There is no requirement the impairment rating be based upon any other criteria, including substantial competent evidence [or competent medical evidence].” Thus, the Board held ALJ Roth “was bound by the Sixth Edition when assessing functional impairment under K.S.A. 44-510d(b)(23).”
The Board does not have the authority to determine constitutional challenges, which have been reserved by Mr. Butler in his appeal to the Kansas Court of Appeals.
Significance
Following Johnson, there was greater certainty for use of the application of the AMA Guides, Sixth Edition to measure functional impairment for whole body injuries supported by competent medical evidence. However, this challenge tees up the constitutional challenge previously evaluated by the Kansas Court of Appeals. Presently, there is more clarity that the AMA Guides, Sixth Edition shall apply to scheduled injuries, however, the constitutional issues remain to be resolved concerning the AMA Guides, Sixth Edition under K.S.A. 44-510d(b)(23) (scheduled injuries).
If you have any questions about this decision and how it may affect you, please contact John Jurcyk or any MVP Kansas City workers’ compensation attorney.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.
