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Workers' Compensation

KS Court of Appeals Issues Opinion on Scheduled Injuries

Weaver v. Unified Government of Wyandotte County


Keeping in line with the rationale of the Johnson decision which allowed ratings to deviate from the 6th Edition of the AMA Guides, the Kansas Court of Appeals has now indicated that the 6th Edition of the AMA Guides is to be used as a starting point for scheduled injuries as opposed to using it strictly.  Doctors are to consider the 6th Edition and all competent medical evidence to render ratings. 

In the Weaver decision the Court also commented on pre-existing impairment. In order to receive a credit for pre-existing impairment, a medical expert must determine that the impairment caused by the current injury existed before the current injury occurred.  Evidence of prior awards alone are not enough to establish pre-existing impairment.   

Facts of the Case

Mr. Weaver is a maintenance worker. He and a coworker were trying to remove a cinderblock wall in the course of his employment when the wall crushed his right hand and wrist against a steel beam. Mr. Weaver had prior settlements to his right hand and wrist. When Mr. Weaver reached maximum medical improvement, the medical experts rated his permanent partial impairment per the A.M.A. Guides, Sixth Edition. The two major issues addressed were: (1) whether a scheduled injury shall be interpreted strictly per the A.M.A. Guides, Sixth Edition per K.S.A. 44-510d and (2) whether the Employer was entitled to a credit per K.S.A. 44-501(e) for his prior right upper extremity settlements.

  1. The Kansas Court of Appeals held to determine a functional impairment rating for scheduled injuries, the fact-finder begins with the Sixth Edition as a starting point and considers competent medical evidence to modify or confirm that rating.

K.S.A. 44-508(u) defines functional impairment based upon competent medical evidence. Despite K.S.A. 44-510d (evaluating permanent partial impairment for scheduled injuries) failing to reference competent medical evidence, the Court held consistently with Johnson and Garcia that the Workers Compensation Act requires physicians evaluate and use the A.M.A. Guides, Sixth Edition as a starting point when evaluating scheduled injuries. Garcia and Johnson addressed K.S.A. 44-510e and the Court of Appeals confirmed similar interpretation applies to scheduled injuries. The court remanded part of the case to obtain clarification as to whether Dr. Carabetta relied upon competent medical evidence for his findings.

  1. The Court of Appeals affirmed the lower court decisions that the Employer was not entitled to a credit for preexisting impairment to the right upper extremity because the physicians agreed the injured worker’s current impairment was different from the impairments for which he had previously been compensated.

The court advised the medical expert shall establish the preexisting impairment. Despite prior right upper extremity claims, the court held there was no evidence from any physician demonstrating preexisting functional impairment. The record lacks any evidence that Weaver’s prior impairments had any relation to the impairments caused by his current accident. Thus, the employer has not shown that any impairments from Weaver’s August 2018 injury were preexisting as that term is used in K.S.A. 44-501(e).

If you have any questions on how this decision impacts your workers’ compensation claims, please contact Jodi Fox or Karl Wenger.

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.