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Minutes for HB2059 - Committee on Commerce, Labor and Economic Development
Short Title
Amending the American medical association guides to the evaluation of permanent impairment edition used for determining workers compensation benefits.
Minutes Content for Tue, Jan 31, 2017
The hearing was opened. Anne Rosenthal, M.D., Rosenthal Medical Legal Consulting, LLC, gave proponent testimony. (Attachment 1) The Fourth Edition was published in 1993 and the Sixth Edition in 2008. There has been no advance in medicine from 1993 to 2008 to justify the significant lowering of the impairment ratings. The Sixth Edition of the Guides to the Evaluation of Permanent Impairment does not result in a fair assessment of impairment of the injured worker. I believe that the Sixth Edition has been very detrimental to the injured worker.
Jan Fisher, McCullough, Wareheim & LaBunker, gave proponent testimony. (Attachment 2) The newest addition is not always the best. The Sixth Edition acknowledges that whole person impairment percentages are based on "normative judgements that are not data driven" and than "await future validation studies". The creation of the Sixth Edition is based on bias views by the primary editor and lacked a diverse viewpoint. The Sixth Edition does not consider "work demands" as an activity of daily living, but the Fourth Edition considers work as an activity of living.
Keith Mark, Mark & Burkhead, gave proponent testimony. (Attachment 3) The law mandating the AMA Guides Sixth Edition was initially passed on a partisan basis, no one fully vetted the contents of the Sixth Edition. The Legislature was advised by certain special interest groups that moving from the Fourth Edition to the Sixth Edition was simply the "latest, greatest update." The consensus among most who studied the application of the Sixth Edition, including the architect of most of the recent Kansas workers' compensation statutory changes, defense attorney Fred Greenbaum, Secretary of State, Kris Kobach, Constitutional Law expert from Washburn University School of Law Bill Rich, and many others, was that the implementation of the Sixth Edition would render Kansas workers' compensation laws unconstitutional. A switch back from the Sixth Edition to the Fourth Edition will resolve the immediate problem of unconstitutionality, which the State of Kansas now faces.
Kris Kobach, Kansas Secretary of State, gave proponent testimony. (Attachment 4) The Sixth Edition reduces the compensation for impairment stemming from certain injuries to zero; in such cases the worker receives no compensation at all. The problem with this change is that it renders the "exclusive remedy rule" unconstitutional. Workers compensation is based on the quid pro quo that the worker trades his due process right to sue his employer in court for an "adequate substitute remedy" through the workers compensation system. When the remedy is reduced to zero, there is no substitute remedy. Kansas is now the only state in the union that combines the Sixth Edition with the prevailing-factor rule. The Kansas Supreme Court has already signaled that they are looking at the workers compensation system, and that they are prepared to remove the exclusive remedy rule if the system does not provide "viable and sufficient" remedies. If the Committee decides to wait and see, and the exclusive remedy rule is thrown out, chaos and unpredictability will replace the stability that Kansas businesses now enjoy.
Written testimony in support of HB2059 was submitted by:
Representative John Carmichael, (Attachment 5)
Jeff Cooper, Kansas Trial Lawyers Association, (Attachment 6)
Blaine Dryden, Kansas Fraternal Order of Police, (Attachment 7)
Terry Forsythe, Working Kansas Alliance, (Attachment 8)
Harold Hess, MD, (Attachment 9)
Adrian Jackson, MD, Premier Spine Care, (Attachment 10)
Howard Johnson, (Attachment 11)
Travis Oller, DC, Kansas Chiropractic Association, (Attachment 12)
John Ostrowski, Kansas AFL-CIO, (Attachment 13)
Francis Pardo, (Attachment 14)
Prema Parmar, MD (Attachment 15)
Michael Snider, Snider & Seiwert, (Attachment 16)
Daniel Zimmerman, MD, (Attachment 17)
Bart Thomas, Thomas Outdoor Advertising, (Attachment 18)
Rachel Colombo spoke on behalf of Mark Melhorn, MD, Kansas Medical Society, gave opponent testimony. (Attachment 19) Each edition has reflected and incorporated the improved science of impairment and assessment, along with the improvements in medical treatments, which have resulted in better outcomes. The current Sixth Edition of the AMA Guides reflects the current best science and expert consensus. The purpose of the Guides is to provide appropriate and fair impairment for loss of function which can be done using the most current science. I encourage you to continue to allow physician's to use the best current science as reflected in the Sixth Edition.
Vince Burnett, Kansas Self-Insurers Association, gave opponent testimony. (Attachment 20 ) An injured employee's workers compensation award should be indicative of the permanent damage caused by his or her workplace accident. The Fourth Edition often permits permanent impairment ratings regardless of whether an injured worker actually sustains permanent damage as a result of a workplace injury. Under the Fourth Edition, an injured worker can receive an impairment rating simply because he or she underwent surgery, even if the surgery was wholly successful and no permanent damage remained thereafter. The Sixth Edition was drafted to correct errors in the Fourth, and Fifth Editions. The Sixth Edition was published to provide a comprehensive, reliable, unbiased and evidence-based rating system. The Sixth Edition does not unconstitutionally deprive an injured worker of a remedy.
Eric Stafford, Kansas Chamber of Commerce, gave opponent testimony. (Attachment 21) Much of the country has kept pace with medical advancements by adopting the use of the Sixth Edition. Over twenty states and the federal government currently use the Sixth Edition as they recognize that it's only common sense and good practice to keep pace with modern medicine. HB2059 takes Kansas backward in our use of medical advancements.
Roy Artman, Kansas Builders Insurance Group, gave opponent testimony. (Attachment 22) The American Medical Association Guides to the Evaluation of Permanent Impairment is the recognized international standard used to determine permanent impairment. It is designed to be used as support for legal systems seeking to compensate those with serious workplace injuries. Some impairments values have been altered resulting in lower impairments, overall the Sixth Edition is an improvement as it integrates scientific and medical advancements and provides a more valid and reproductible framework of determining permanent impairments. A return to the Fourth Edition would ignore the advances in medical science treatment and set Kansas back in time fifteen years. The Sixth Edition expands the number of rateable conditions which were not rateable in prior editions. The Sixth Edition provides a comprehensive, valid, reprodutible, unbiased evidence based rating system.
Dina Cox, Society For Human Resources Management, gave opponent testimony. (Attachment 23) To revert back to an older edition is regressive and not in the best interests of the injured workers, businesses and State of Kansas. Impairment should not be determined by diagnoses, but by the employee's improved functions which is what the Sixth Edition attempt to do through consistent methodology. Advances in medical treatment also make it easier to objectively test for impairment, treat injured employees with greater success, and produce better outcomes, a win-win situation. Data for injuries in 2015 are now starting to be evaluated. There is insufficient data to make any claims about reductions in the impairment ratings or that injured workers are being treated unfairly using of the Sixth Edition.
Written testimony in opposition of HB2059 was submitted by:
Anton Anderson, Travelers Indemnity Company, (Attachment 24)
Tom Brown, Kansas Eastern Region Insurance Trust, (Attachment 25)
Chris Fevurly, MD, (Attachment 26)
Steven Graham, Spirit Aerosystems, (Attachment 27)
Kevin McFarland, Leading Age Kansas, (Attachment 28)
Daniel Murray, National Federation of Independent Business, (Attachment 29)
Mark Tallman, Kansas Association of School Boards, (Attachment 30)
Jason Watkins, Wichita Regional Chamber of Commerce, (Attachment 31)
Mark Walls, Safety National, (Attachment 32)
The conferees stood for questions.
