Johnson v. U.S. Food Service
427 P.3d 996
| Kan. Ct. App. | 2018Background
- Howard Johnson, a delivery driver, injured his neck at work on October 16, 2015; surgery followed and he claimed ongoing limitations.
- Dr. Hess rated Johnson’s permanent impairment at 6% of the whole person using the AMA Guides (6th ed.); the Fourth Edition would have produced a 25% rating according to medical testimony.
- The 2013 amendment to K.S.A. 44-510e required use of the AMA Guides (6th ed.) for injuries on/after Jan. 1, 2015; Johnson’s claim was assessed under the 6th edition and awarded about $14,800 rather than ~$61,700.
- Johnson challenged the statute as facially unconstitutional under § 18 of the Kansas Constitution and the Fourteenth Amendment, arguing the 6th edition destroyed the Act’s quid pro quo by drastically reducing impairment awards and eliminating physician discretion.
- The ALJ and Kansas Workers Compensation Board applied the 6th edition; this appeal asks whether adopting the 6th edition renders the workers’ compensation remedy an inadequate substitute for common-law tort remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adoption of the AMA Guides (6th ed.) violates due process/§18 by rendering the workers’ compensation quid pro quo inadequate | Johnson: The 6th edition cuts impairment ratings dramatically, removes physician discretion, shifts focus to activities of daily living (not work capacity), and thus extinguishes an adequate substitute remedy | State/AG: Legislature rationally adopted the 6th edition for medical soundness; plaintiff hasn’t shown comparative tort recovery would be higher; rational-basis for change met | Court: Adoption of the 6th edition (effective Jan. 1, 2015) made the Act’s remedy inadequate for claimants with permanent impairment; the change is unconstitutional as applied facially to that class |
| Whether the 6th edition satisfies the two-part Injured Workers test (public interest + adequate substitute remedy) | Johnson: Even if a public interest exists, the Act fails the second prong—no adequate substitute remains for permanent-impairment claimants | State: Legislative history and expert support satisfy public-interest rationale; change is within legislative authority | Court: First prong satisfied (rational basis exists), second prong fails—the 6th edition tips the balance and emasculates the quid pro quo |
| Whether remedy should be severance/reinstatement of prior edition | Johnson: Sever the mandate and revert to the 4th edition to restore adequate remedy | State: (No contrary position given on remedy in opinion summary); parties agreed at argument that reinstating the 4th edition is appropriate | Court: Apply severability clause and strike statutory provisions mandating the 6th edition, thereby reinstating the 4th edition for impairment ratings |
| Relief and remand | Johnson: Remand for recalculation under 4th edition and further proceedings | State: (argued constitutionality or defended statute) | Court: Reversed Board; remanded to ALJ to proceed using the AMA Guides (4th ed.) |
Key Cases Cited
- Howard Delivery Service, Inc. v. Zurich Am. Ins. Co., 547 U.S. 651 (U.S. 2006) (explaining workers’ compensation as a quid pro quo trade-off)
- New York Cent. R. Co. v. White, 243 U.S. 188 (U.S. 1917) (legislature must provide a reasonably just substitute when abolishing common-law remedies)
- Injured Workers of Kansas v. Franklin, 262 Kan. 840 (Kan. 1997) (two-part test: public interest justification and adequate substitute remedy)
- Bair v. Peck, 248 Kan. 824 (Kan. 1991) (legislature may modify common law if an adequate substitute is provided; cannot emasculate substitute remedy)
- Lemuz v. Fieser, 261 Kan. 936 (Kan. 1997) (reaffirming limits on legislative reduction of substitutes for common-law rights)
- Rajala v. Doresky, 233 Kan. 440 (Kan. 1983) (upholding 1967 amendments to the Act)
- Miller v. Johnson, 295 Kan. 636 (Kan. 2012) (adequacy of substitute remedy is required to meet due process)
- Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191 (Kan. 1976) (purpose of Act is compensation for loss of earning power)
- Gorrell v. Battelle, 93 Kan. 370 (Kan. 1914) (historic statement that Act aimed to compensate loss of earning power)