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Four Keys to Understanding the Significance of Johnson v. U.S. Food Service

by Joe Patton | Dec. 1, 2020


Howard Johnson, who had been employed by U.S. Food Service, injured his neck on the job and received a valid but shockingly low workers' compensation award. Mr. Johnson challenged the worker's compensation statute as a facially unconstitutional violation of Section 18 of the Kansas Bill of Rights, due to his inadequate remedy. Johnson vs. U.S. Food Service is an appeal to the Kansas Court of Appeals from the Kansas Workers Compensation Board and is currently before the Kansas Supreme Court.

The First Key—The Guides to the Evaluation of Permanent Impairment

The first key is to understanding Johnson is to see how vital the Guides to the Evaluation of Permanent Impairment are in the worker's compensation practice. Almost five decades ago, the American Medical Association published the Guides. The Guides' express purpose was to bring greater objectivity to estimating the degree of permanent body impairment suffered by an injured person. The Legislature adopted several changes in the Kansas Workers Compensation Act, including adopting the 4th Edition of the Guides, and, two years later, the 6th Edition, for all injuries after January 1, 2015. The compensation for a body disability or functional disability is determined by a statutory formula, which includes the Guides ratings as a factor. The 6th edition impairment ratings are 40% to 70% lower than those provided in the 4th Edition. The physician used  the Sixth Edition of the AMA Guides in rating Johnson's permanent impairment at 6% of the whole person. Had the physician used the Fourth Edition, Johnson's rating would have been 25%. It has been argued that no substantial changes in the medical field between the publication of the 4th edition and the 6th edition warrant such a drastic reduction in these ratings.

The Second Key—Kansas Bill of Rights Section 18

The second key in understanding Johnson is the quid pro quo analysis of Section 18 of the Kansas Constitution Bill of Rights. The courts have often said the Legislature can modify the common law remedies available in Court, but Section 18 requires an adequate replacement. The Guides claim to bring the current scientific clinical knowledge and judgment to bear on the issue of impairment. Detractors argue the Guides are arbitrary, oppressive and often effectively eliminate the workers' remedies. Although a three-judge panel of the Kansas Court of Appeals fell short of calling the Act oppressive, it declared the Legislature had emasculated the remedies available to an injured worker:

"The Act no longer provides an adequate substitute remedy for the abrogation of an injured worker's common-law right to sue an employer for negligence." Johnson v. U.S. Food Serv., 427 P.3d 996, 1013 (2018), review granted Feb. 28, 2019.

The Court quoted extensively from the legislative testimony, including that "Secretary of State Kris W. Kobach, a former law school professor who taught constitutional law for 15 years, supported the bill to discontinue using the Sixth Edition of the A.M.A. Guides." Kobach's written submission to the committee included the following points:

  • "[A]ny fair constitutional analysis of the [shift from the Fourth Edition to the Sixth Edition of the A.M.A. Guides] will yield the conclusion that employees are denied due process for certain injuries." If the quid pro quo justifying an injured worker's denial of access to the courts for relief "disappears or becomes inadequate, then the exclusive remedy rule dissolves. Due process requires that the employee must have some avenue to seek a meaningful remedy."
  • The Sixth Edition "reduces some classes of injuries to zero compensation" and "reduces other injuries to pathetically inadequate compensation levels, by anyone's reckoning."
  • The Sixth Edition materially changed compensation awards over what was awarded under the Fourth Edition for certain injuries even though "nothing changed in this area of medicine between the publications of the 4th and 6th Editions."
  • "Kansas is now the only state in the union that combines the 6th Edition with the prevailing-factor rule. That puts Kansas in a class by itself, and it results in a denial of due process to Kansas workers."
  • "[T]he 6th Edition takes away from the administrative judge the ability to tailor a remedy to the specific circumstances of a particular case. It replaces a range of values with a one-size-fits-all approach. If the employee loses the ability to have the decision-maker consider the specific facts of his case and modify the remedy accordingly, he has been denied due process."

From written testimony of the former Kansas Secretary of State Kris Kobach, submitted to the Kansas Legislature and cited in the court opinion at Johnson, 47 P.3d at 1007.

The Court of Appeals panel in Johnson reviewed a laundry list of past changes to the Workers Compensation Act, calling the changes "death by a thousand paper cuts." The Court concluded that an adequate remedy no longer remained: the adoption of the A.M.A. Guides' Sixth Edition was the "last slice that tips the balance." "[A]doption of the Sixth Edition of the A.M.A. Guides leaves the injured worker who suffers a permanent impairment in a situation not unlike that of Monty Python's Black Knight." Johnson, 47 P.3d at 1009.

The Third Key—The Remedy

The remedy chosen by the Court is the third key in understanding Johnson. In order to solve the unconstitutionality of the Workers Compensation Act, the Court decided to sever the offending provisions mandating the use of the 6th Edition. By striking the 6th Edition provisions, the Court effectively rewrote the statute by inserting the statute's old language, which required the use of the 4th Edition, saying: "Such a remedy will effectively reinstate the use of the Fourth Edition as the basis for determining impairment ratings."

The Court could have used other remedies, including striking the rule of exclusivity. The rule of exclusivity is codified in K.S.A. 44-501b(d) and prevents the injured worker from bringing negligence claims for work injuries. If a future Court strikes the rule of exclusivity, a worker could sue the employer directly for negligence.

The Fourth Key—When Compensating an Injured Victim, Who Decides How Far is too Far?

The fourth and final key to understanding Johnson's significance is to explore how far the Courts might expand the protection provided in Section 18 of the Kansas Bill of Rights.

In adopting the Workers Compensation statutes, the Legislature, believing it had the right to make public policy, heard the committee testimony and made a judgment call. The Kansas Court of Appeals panel reviewed the same testimony and made a different call, calling it not public policy but constitutional interpretation.

There are many more limitations of the common law remedies in our statutes. It is a legitimate question to ask how far the Kansas Supreme Court will go in striking other statutory limitations of jury trials. Consider the bold language of Hilburn v. Enerpipe Ltd. interpreting Section 18 in striking damages caps:

"… the cap's effect is to disturb the jury's finding of fact on the amount of the award. Allowing this substitutes the Legislature's nonspecific judgment for the jury's specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate." Hilburn v. Enerpipe Ltd., 42 P.3d 509, 524 (2019).

When compensating an injured victim, who is to decide how far is too far? The answer appears to be the people empaneled as a trial jury, with resulting verdicts that may displease both the Legislature and the Courts.


The Kansas Supreme Court will decide which version of the Guides to the Evaluation of Permanent Impairment to use in the worker's compensation practice, with a corresponding impact on the amount of permanent partial disability awards. If the court decides to mandate the use of the 4th Edition Guides, awards to plaintiffs will increase substantially. Further, the Supreme Court's application of the quid pro quo analysis of Section 18 of the Kansas Constitution Bill of Rights, and a constitutional analysis that treats the trial by jury as “inviolate,” may negate other legislative statutes that give juries specific guidance.

Joe Patton is the senior partner of the law firm Patton and Patton in Topeka. He is a workers compensation attorney and former representative to the Kansas legislature.

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