Fourth Quarter 2017
By: Stephen P. Murray
Question: Under Kansas law, can an impairment rating be submitted into evidence and how effective are the ratings in mitigating permanency exposure?
Short Answer: Yes, an impairment rating can be submitted into evidence in Kansas and is effective in mitigating permanency exposure, so long as the rating is determined under the AMA Guides Sixth Edition and the employee has not suffered a permanent and total disability.
Discussion: In Kansas, apart from a permanent total disability, there are two types of injuries that are compensable: 1) permanent partial scheduled disabilities and 2) permanent partial general disabilities. Submitting an impairment rating in either instance can be effective in mitigating permanency exposure.
Permanent partial scheduled disabilities are paid when an employee sustains complete or partial loss of use of a body part, such as an arm, leg, foot, or hand. Compensation for such loss is determined through the use of an impairment rating submitted into evidence. It is important to note that in Kansas, an employee has the right to seek a second opinion or secondary treatment if they are dissatisfied with their physician for whatever reason, however an employer is only required to pay up to $500.00 for said second opinion/treatment and that $500.00 cannot be used to obtain a second impairment rating.
Permanent partial general disabilities are paid when an employee sustains a permanent partial disability not specifically covered by the schedule. If an employee is able to return to work and is earning at least 90% of their average weekly wage, the employee is given a percentage of the whole body impairment. Compensation is based on the percentage of disability remaining after recovery and is limited to 415 weeks.
In the absence of proof to the contrary, an employee is deemed permanently and totally disabled (rendered completely and permanently incapable of engaging in any type of substantial and gainful employment) after losing both eyes, both hands, both arms, both feet, both legs or any combination thereof.
Practice Tip: Kansas, unlike most states, requires physicians to use the AMA Guides Sixth Edition when determining permanent impairment. Unlike the Fifth Edition, the Sixth Edition does not automatically presume additional permanent impairment after a second surgery to the same body part. As such, employers should note that approving second surgeries in Kansas does not automatically increase permanency exposure in any specific case.