Garcia v. Tyson Fresh Meats, Inc.

No. 123,430

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GUADALUPE GARCIA,
Appellant,

v.

TYSON FRESH MEATS, INC.,
Appellee.

SYLLABUS BY THE COURT

1.
When analyzing whether the Workers Compensation Board erroneously applied
the law to undisputed facts, appellate courts exercise de novo review.

2.
The Court of Appeals reviews an award entered by the Workers Compensation
Board under the Kansas Judicial Review Act. If it is found that the Board misapplied the
law, the Court of Appeals has the latitude to correct that error. It owes no deference to the
Board's legal analyses or conclusions.

3.
In this case, the Board erred in entering an award based on a functional
impairment rating derived solely from the Sixth Edition of the American Medical
Association Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

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4.
In a workers compensation case, an impairment rating for a work injury must be
supported by competent medical evidence. K.S.A. 2020 Supp. 44-510e(a)(2)(B).

5.
When establishing an impairment rating in a workers compensation case for work
injuries occurring after January 1, 2015, the Sixth Edition of the Guides is simply the
statutorily required starting point. The percentage arising from the use of the Guides
alone is but a single factor in the overall assessment. Medical experts must then consider
other available medical evidence to arrive at an accurate, comprehensive impairment
rating.

6.
If, in a physician's expert medical opinion, the Guides state inaccurately an injured
worker's functional impairment, they should supplement their evaluations with those
tests, reports, or resources that they determine, in their professional expertise, will yield a
more accurate result and one that embodies the full spectrum of competent medical
evidence as contemplated by K.S.A. 2020 Supp. 44-510e(a)(2)(B).

7.
The impairment rating relied upon by the Board was the product of the evaluating
physician's strict adherence to the Guides alone. Thus, the goal of the statute, that
impairment ratings arise out of comprehensive, competent medical evidence, was not
achieved in this case.

Appeal from Workers Compensation Board. Opinion filed January 28, 2022. Affirmed in part,
reversed in part, and remanded with directions.

Stanley R. Ausemus, of Stanley R. Ausemus, Chartered, of Emporia, for appellant.

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 Gregory D. Worth, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.

Before ATCHESON, P.J., BRUNS and ISHERWOOD, JJ.

ISHERWOOD, J.: Guadalupe Garcia appeals from the decision of the Kansas
Workers Compensation Board (Board) finding that the injury she sustained during her
employment resulted in only a 3% impairment to her body as a whole. Because the Board
relied on a medical opinion that appears to have been exclusively based on the Sixth
Edition of the American Medical Association (AMA) Guides to the Evaluation of
Permanent Impairment (6th ed. 2008) to establish Garcia's functional impairment rating,
rather than on a comprehensive view of competent medical evidence, we reverse the
Board's decision and remand for a reexamination of her impairment rating and such other
relief as may be appropriate.

A medical opinion confined to the Sixth Edition typically would not conform to
the Kansas Supreme Court's recent reading of K.S.A. 2020 Supp. 44-510e(a)(2)(B),
governing permanent impairment ratings, in Johnson v. U.S. Food Service, 312 Kan. 597,
603, 478 P.3d 776 (2021) (Johnson II). Although the Board did not have the benefit of
Johnson II when it ruled, the court's determination applies to unresolved workers
compensation cases, including Garcia's. The Board's decision, therefore, amounts to an
erroneous interpretation of the law subject to review and correction under the Kansas
Judicial Review Act (KJRA). K.S.A. 77-621(c)(4).

FACTUAL AND PROCEDURAL BACKGROUND

Garcia filed an application for a hearing with the Kansas Division of Workers
Compensation in June 2017. She claimed a date of injury of January 12, 2017, and each
working day thereafter.

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 At the time Garcia filed her application, K.S.A. 2016 Supp. 44-510e(a)(2)(B)
provided that the extent of permanent partial general disability for injuries occurring on
and after January 1, 2015, should be "based on the sixth edition of the American medical
association guides to the evaluation of permanent impairment, if the impairment is
contained therein." The Fourth Edition of the AMA Guides is the version applicable to
injuries occurring prior to January 1, 2015. K.S.A. 2020 Supp. 44-510e(a)(2)(B).

Garcia was evaluated by three doctors, each of whom was specifically requested to
provide a rating for Garcia's whole-body impairment under both the Fourth and Sixth
Editions of the AMA Guides. Dr. John Estivo, D.O., rated Garcia at 5% under the Fourth
Edition and 3% under the Sixth Edition. Dr. George Fluter, M.D., rated Garcia at 18%
under the Fourth Edition and 19% under the Sixth Edition, and Dr. Terrence Pratt, M.D.,
rated Garcia at 8% under the Fourth Edition and 2% under the Sixth Edition.

In August 2018, a panel of this court ruled that use of the Sixth Edition of the
AMA Guides for measuring permanent impairment of injured workers was
unconstitutional and found that the Fourth Edition of the AMA Guides should be used in
evaluating an injured worker's permanent impairment. Johnson v. U.S. Food Service, 56
Kan. App. 2d 232, Syl. ¶ 7, 427 P.3d 996 (2018) (Johnson I). That decision was appealed
to the Kansas Supreme Court which granted review in February 2019.

As a result of this court's decision in Johnson I, Garcia requested that her regular
hearing, scheduled for November 2019, be continued until the Kansas Supreme Court
issued its decision on the appeal. The administrative law judge (ALJ) denied the motion,
noting that June 2020 marked the expiration of the three-year time deadline for
proceeding to a regular hearing as established by K.S.A. 2020 Supp. 44-523(f). Garcia
filed a motion for reconsideration of her request for continuance in May 2020. The ALJ
denied the motion, reasoning that absent agreement of the parties he needed to issue an
award within the time frame established by K.S.A. 2020 Supp. 44-523(c).

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 The ALJ issued a decision in June 2020. He acknowledged this court's decision in
Johnson I, and Garcia's argument that the Fourth Edition of the AMA Guides should
apply. However, he concluded that the Johnson I decision was not binding precedent
because the Kansas Supreme Court granted a petition for review. See Kansas Supreme
Court Rule 8.03(k) (2020 Kan. S. Ct. R. 54).

On the merits, the ALJ considered the impairment ratings provided by Doctors
Estivo, Pratt, and Fluter under the Sixth Edition of the AMA Guides. He concluded that
Dr. Estivo's assessment of a 3% impairment was most persuasive based on the doctor's
heightened familiarity with Garcia's claim (he examined her multiple times), as well as
the overall credibility of his report and findings. The ALJ also found that because Garcia
only had 3% impairment to her body as a whole, she was not eligible for work disability
compensation. See K.S.A. 2020 Supp. 44-510e(a)(2)(C)(i) (stating that an employee may
be eligible to receive work disability if "[t]he percentage of functional impairment
determined to be caused solely by the injury exceeds 7 1/2% to the body as a whole or the
overall functional impairment is equal to or exceeds 10% to the body as a whole in cases
where there is preexisting functional impairment."). The ALJ did authorize Garcia to
apply for future medical care benefits.

Garcia sought review by the Workers Compensation Appeals Board. She also
moved to stay those proceedings until the Kansas Supreme Court issued its opinion in
Johnson II.

The Board entered a written order in November 2020. First, it held that the matter
could not be stayed as Garcia requested absent an agreement between the parties because
K.S.A. 2020 Supp. 44-551(l)(1) required it to issue an order within 30 days of the appeal
being fully submitted. The Board also held that it lacked the authority to enter a ruling on
the constitutionality of the Guides. Third, the Board affirmed the ALJ's finding that
Garcia suffered a 3% functional impairment to her body as a whole under the Sixth

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Edition of the Guides. Finally, the Board reversed the ALJ's award of future medical
benefits.

Garcia now brings the matter before us and requests that we review and analyze
the propriety of the decisions entered by the Board, with the exception of its reversal of
her award of future medical benefits. The latter issue was not appealed and, therefore,
the Board's decision on that matter will not be reviewed or disturbed.

ANALYSIS

Garcia filed her brief in this appeal before the Kansas Supreme Court issued its
decision in Johnson II. She raises four issues. First, she challenges the constitutionality of
the 2013 amendment to K.S.A. 2020 Supp. 44-510e, which requires the use of the Sixth
Edition of the Guides during the assessment of impairment for work injuries. Second,
she argues that the ALJ and Board both erred by not continuing her case until the Kansas
Supreme Court decided Johnson II. Third, she argues that the ALJ and Board erred in
relying on the Sixth Edition of the Guides. Finally, she argues that the ALJ and Board
erred in refusing to find that she suffered a work loss.

As we have indicated, we review a workers compensation award under the KJRA,
K.S.A. 77-601 et seq., and may reverse an agency decision only in limited circumstances.
See K.S.A. 77-621(c). If the Board materially misapplies the law, we may step in to
correct that error. When analyzing whether the Workers Compensation Board
erroneously applied the law to undisputed facts, appellate courts exercise de novo review.
See Mera-Hernandez v. U.S.D. 233, 305 Kan. 1182, 1185, 390 P.3d 875 (2017). The
controlling issue here is one of statutory construction, as filtered through the Johnson II
decision, and, thus, presents a question of law. We owe no particular deference to the
Board's legal analyses or determinations. Estate of Graber v. Dillon Companies, 309
Kan. 509, Syl. ¶ 2, 439 P.3d 291 (2019).

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 IS THE REQUIREMENT IN K.S.A. 2020 SUPP. 44-510e TO USE THE SIXTH EDITION OF THE
AMA GUIDES DURING AN IMPAIRMENT ASSESSMENT UNCONSTITUTIONAL?

Garcia's first argument is that the amendment to K.S.A. 2020 Supp. 44-510e,
requiring use of the Sixth Edition of the Guides as part of the analysis to assess the extent
of permanent partial general disability for injuries sustained after January 1, 2015, is
unconstitutional. As noted above, the Kansas Supreme Court rejected this argument in
Johnson II. We are duty bound to follow Kansas Supreme Court precedent unless there is
some indication of a departure from its previous position. State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017). The court has issued no such signal related to its ruling
in Johnson. As a result, we must reject Garcia's argument that use of the Sixth Edition of
the Guides is unconstitutional.

DID THE ALJ AND THE BOARD ERR WHEN THEY DECLINED TO CONTINUE GARCIA'S
CASE UNTIL THE SUPREME COURT ISSUED ITS OPINION IN JOHNSON II?

Garcia next asserts that the ALJ and the Board erred when they refused her request
to continue this case until such time as the Kansas Supreme Court issued its decision in
Johnson II. Garcia offers us only a single sentence on this point, stating that "[i]t goes
without saying" that the ALJ "had the duty and obligation to continue the case until such
time as the Supreme Court ruled on the case of Johnson . . . since the Court of Appeals
had already ruled the use of the 6th Edition of the AMA Guides is unconstitutional." This
argument falls far short of what is required to secure the relief Garcia seeks.

First, an issue on appeal before this court cannot "go[] without saying." A party
has an obligation to advance a substantive argument in support of their position and
buttress it with pertinent authority or risk a ruling that the issue is waived or abandoned.
Garcia did not supply a standard of review, provide us with any pertinent rules or
caselaw, or engage in any analysis of the issue. Simply put, she failed to substantiate her
claim that the Board had a "duty and obligation" to stay the case. Her argument on this

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point is properly considered abandoned. See Russell v. May, 306 Kan. 1058, 1089, 400
P.3d 647 (2017) (holding that a point raised incidentally in a brief and not argued therein
is deemed abandoned).

DID ERROR OCCUR WHEN THE BOARD ADOPTED AN IMPAIRMENT RATING THAT WAS
INFORMED SOLELY BY THE SIXTH EDITION OF THE GUIDES AT THE TIME IT WAS
ESTABLISHED BY THE EVALUATING PHYSICIAN?

Three arguments remain in Garcia's appeal, all of which we believe can be
resolved collectively through a comprehensive analysis:

• Did the ALJ and Board err in rendering an award for an impairment rating
that arose solely from the evaluating physician's use of the Sixth Edition of the Guides;

• Did the ALJ and Board err in refusing to find that Garcia was entitled to
work disability under K.S.A. 2020 Supp. 44-510e(a)(2)(C); and

• Should this case be remanded for a new comprehensive medical evaluation
in light of the Kansas Supreme Court's decision in Johnson II.

Garcia's is not the first case to come before our court raising issues of this nature.
Practitioners and injured workers alike have endeavored to navigate the course they are
expected to travel following the adoption of the Sixth Edition of the Guides in the
functional impairment calculus.

In Pardo v. United Parcel Services, 56 Kan. App. 2d 1, 422 P.3d 1185 (2018), an
injured worker challenged the constitutionality of K.S.A. 2014 Supp. 44-510d(b)(23) as
applied to his workers compensation claim. This statute mandated that for all work-
related injuries occurring after January 1, 2015, the Sixth Edition of the Guides must be
used during the rating process of a work-related injury to determine a worker's amount of
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compensation. A panel of our court agreed with Pardo that the statute was
unconstitutional as applied to him because it denied him a remedy guaranteed by the
Kansas Constitution. 56 Kan. App. 2d at 25.

In Johnson I, 56 Kan. App. 2d at 257, a panel of this court concluded that K.S.A
2019 Supp. 44-510e(a)(2)(B) was unconstitutional on its face upon finding that adopting
the Sixth Edition of the Guides violated due process and the remedy provision of the
Kansas Constitutional Bill of Rights. In Johnson II, 312 Kan. at 603, our Supreme Court
reversed and concluded that the statutory amendment did not create a due process
violation because it did not unfairly alter the legal standard required for establishing an
injured worker's functional impairment. Rather, the amendment merely updated the
starting point for the medical opinion from the Fourth Edition to the Sixth.

The matter was next before us in Guzzo v. Heartland Plant Innovations Inc., No.
121,811 2021 WL 3042264 (Kan. App. 2021) (unpublished opinion). In that case, Guzzo
challenged the Sixth Edition driven impairment calculation accepted by the ALJ and the
Board and argued it lacked the requisite evidentiary foundation. Guzzo asserted that the
two entities should have had the option to choose between a rating arrived at under
application of either the Fourth Edition or the Sixth depending upon which rating
exhibited the greatest degree of veracity. Guzzo asserted that the Fourth Edition should
have been an available option in her case because it was more credible than that
submitted under the Sixth. A panel of this court found that Guzzo's proposal was not
permissible in light of our Supreme Court's decision in Johnson II. Guzzo, 2021 WL
3042264, at *5.

Zimero v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 1, 499 P.3d 1153 (2021),
brought a similar issue before us. Zimero asserted that the ALJ and the Board ignored
relevant evidence of a 5% impairment rating under the Fourth Edition of the Guides and
instead erroneously chose to strictly adopt a 3% impairment rating under the Sixth

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Edition. She took the position that to be truly accurate and proper the ultimate rating
adopted by those two entities must be the product of a calculation which embodied both
available percentages in some manner. In rejecting that contention, the Zimero court
observed that the ALJ and the Board did not possess the latitude to formulate their own
calculation procedure which implemented a combination of the percentages from the two
editions. Rather, the statute specifically required use of one or the other as a starting point
depending on the date of injury:

"The Legislature specifically chose to adopt the Sixth Edition as the new set of guidelines
for injuries occurring after January 1, 2015. But as stated in Johnson, the impairment
rating must still be supported by "competent medical evidence" with the Sixth Edition
used as a starting point for the determination. See Johnson, 312 Kan. at 602. Based on
Johnson, the Fourth Edition is irrelevant after January 1, 2015. We start with the Sixth
Edition and then use competent medical evidence to increase or decrease that guideline
amount. Parties and courts do not choose between using the Fourth Edition or the Sixth
Edition. The Sixth Edition is statutorily required." Zimero, 61 Kan. App. 2d at 6.

We recognize the force and effect the term "irrelevant" has the potential to convey.
We will attempt to shed light on what we see as its meaning in Zimero. In doing so, we
endeavor to place that statement in the context of the narrow point then being addressed
in Zimero and suggest it should not be construed any more broadly. See Illinois v.
Lidster, 540 U.S. 419, 424, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004) (Language in
judicial opinions should be read "as referring in context to circumstances similar to the
circumstances then before the Court and not referring to quite different circumstances
that the Court was not then considering.").

It is important not to divorce the term from the context in which it is embedded.
As we have indicated, the paragraph is specifically devoted to an explanation of the
position our Supreme Court took in Johnson II regarding the Sixth Edition as the
appropriate starting point for medical opinions in workers compensation matters. The

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Zimero court simply clarified that under Johnson II "[w]e start with the Sixth Edition"
then proceed to consideration of the other medical evidence available to arrive at an
accurate, comprehensive rating. 61 Kan. App. 2d at 6. (Emphasis added.) Thus, under a
fair reading of Zimero the Fourth Edition is only irrelevant with respect to that specific
foundational step, the starting point, in the assessment process.

Garcia's case affords us the opportunity to further discern the intended operation of
K.S.A. 2020 Supp. 44-510e(a)(2)(B) and build upon those cases preceding hers. In her
quest for relief, Garcia takes a different tack than did Zimero. Where Zimero attempted to
secure a rating that somehow reflected a marriage of the Fourth and Sixth Editions,
Garcia advocates for us to simply conclude that the ALJ and Board erred in failing to
solely rely on the available rating calculated in accordance with the Fourth Edition
because the Sixth allegedly yielded a deficient and inaccurate result. We again look to the
provision itself, as well as the opinion in Johnson II, to explain why Garcia's proposal
must be rejected.

In trying to yield some measure of clarity, the Johnson II court focused on the
plain language of the statute and cautioned against reading something into its wording not
readily found within the text. The relevant provision in the statute states as follows:

"The extent of permanent partial general disability shall be the percentage of
functional impairment the employee sustained on account of the injury as established by
competent medical evidence and based on the fourth edition of the American medical
association guides to the evaluation of permanent impairment, if the impairment is
contained therein, until January 1, 2015, but for injuries occurring on and after January 1,
2015, based on the sixth edition of the American medical association guides to the
evaluation of permanent impairment, if the impairment is contained therein." K.S.A.
2020 Supp. 44-510e(a)(2)(B).

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 The Johnson II court deconstructed the statute a bit to highlight what it designated
as its key language. In the court's opinion, to understand the intended operation of the
provision, there must be an appreciation for the phrases "based on" and "competent
medical evidence." 312 Kan. at 602.

The Johnson II court explained that the provision is most aptly classified as a
"standard" which allows for more suppleness in its application than a "rule." 312 Kan. at
602. "Rules establish legal boundaries based on the presence or absence of well-specified
triggering facts." Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards
Revisited, 79 Or. L. Rev. 23, 25 (2000). "Standards, in contrast, require adjudicators
(usually judges, juries, or administrators) to incorporate into the legal pronouncement a
range of facts that are too broad, too variable, or too unpredictable to be cobbled into a
rule." 79 Or. L. Rev. at 25. Consistent then with designation of the statute as a standard,
Johnson II determined that through the Legislature's use of the phrase "based on" it
signaled that the Sixth Edition of the Guides was to be used merely as the starting point
for medical experts offering evaluations in workers compensation cases from which the
"more important and decisive 'competent medical evidence'" would ultimately emanate.
312 Kan. at 602. Importantly, the court found that the statute "has never dictated that the
functional impairment is set by guides." 312 Kan. at 603. Thus, according to Johnson II,
the provision contemplates the use of an array of sources the medical expert considers
professionally appropriate in arriving at an injured worker's functional impairment rating.
See Johnson, 312 Kan. at 603.

Viewing functional impairment as the product of a comprehensive assessment is
also consistent with the purpose of the Workers Compensation Act.

"[W]orkers Compensation . . . involves a classic social trade-off or, to use a Latin term, a
quid pro quo . . . What is given to the injured employee is the right to receive certain
limited benefits regardless of fault . . . What is taken away is the employee's right to

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 recover full tort damages, including damages for pain and suffering, in cases in which
there is fault on the employer's part." Hughes Delivery Service, Inc. v. Zurich American
Ins. Co., 547 U.S. 651, 662-63, 126 S. Ct. 2105, 165 L. Ed. 2d 110 (2006).

A process which ensures that all relevant information is represented in the
impairment rating equation safeguards the injured worker's right to receive a "viable and
sufficient substitute remedy" for the relinquishment of their ability to pursue a tort-based
claim. See Lemuz v. Fieser, 261 Kan. 936, 959, 933 P.2d 134 (1997). This is particularly
true given the paradigm shift between the Fourth and Sixth Editions.

The Fourth Edition was drafted in a way which exhibited a greater focus on the
employment injury centric goal of the Workers Compensation Act. To the extent it
included activities of daily living (ADL) within its rubric, it tended to focus on those
which were readily transferrable to a workplace environment such as stooping, squatting,
and lifting. AMA Guides Fourth Edition, p. 317.

By contrast, the Sixth Edition reflects an inversion of that way of thinking to some
degree. That edition widened the lens to view individuals from the perspective of a
standard person rather than against the particularities of an injured worker specifically,
and the rigors commensurate with their line of work. The corresponding result injects
ADL activities into the equation which generally lack any characteristics particular to that
individual's employment: for example, one's ability to complete their hygiene routine, eat
unencumbered, or maintain positive sleep habits. Measuring an injured worker's
disability in such a way, rather than in terms of their continued ability to successfully
complete the job tasks they have historically performed, neglects to properly address the
import of the injury and is counterintuitive to the purpose of the Act.

Moreover, the Sixth Edition seeks to enhance the standardization of the
quantification of injuries to allow for greater uniformity in recovery across the spectrum

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of claimants. AMA Guides Sixth Edition, pp. 1-2, 19-20. While two individuals suffering
the same hand injury may occupy similar planes from an abstract, purely objective
standpoint in that both may struggle to brush their teeth and tie their shoes, in the reality
of the employment context that injury may impact the two in very different ways. For
example, a person employed in a purely administrative capacity will experience very
different and perhaps fewer employment challenges than a manual laborer such as
Garcia. Accordingly, subjective work-related elements should be an integral part of the
calculus if the ideology of the Act is to be preserved—to compensate the injured worker
for the actual loss they have experienced.

In viewing K.S.A. 2020 Supp. 44-510e(a)(2)(B) as a standard which "set[s] the
legal parameters . . . [yet] leaves work to be done" Johnson II observed that deficiencies
in the assessment equation are avoidable. 312 Kan. at 602. The Supreme Court clarified
that the foundational framework alone is articulated in the statute, and to develop a form
around the framework the facts of each individual case must be fleshed out. This is
because impairment is not dictated by strict adherence to the Guides in isolation, but
through careful consideration of competent medical evidence in conjunction with the
Guides. See Johnson II, 312 Kan. at 602-03. That is, it involves "facts that are too broad,
too variable, or too unpredictable to be cobbled into a rule." Behavioral Analysis and
Legal Form: Rules vs. Standards Revisited, 79 Or. L. Rev. at 25.

It is against this backdrop that we move into an analysis of Garcia's remaining
claims. Again, Garcia was examined by three physicians, Doctors Estivo, Pratt, and
Fluter, each of whom honored a request from counsel to provide a whole body
impairment rating arising exclusively out of the Fourth Edition and exclusively out of the
Sixth Edition of the Guides. The ALJ and Board found that Dr. Estivo's assessment of
impairment was most persuasive. We are of the opinion that this conclusion cannot be
permitted to stand. When the overall purpose of the Workers Compensation Act, to
ensure that injured workers are adequately compensated for their loss of earning power, is

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coupled with the directives discussed in Johnson II, a medical doctor's impairment rating
must be formulated following a comprehensive review of the worker's condition. Stated
another way, the Sixth Edition provides the starting point for the medical opinion and the
assessment then proceeds to consideration of any competent medical evidence the doctor
determines to be relevant in calculating an accurate impairment rating. That is, while the
Legislature modified the starting point it did not correspondingly render examinations
and tests performed under the Fourth Edition obsolete. To preserve the efficacy of the
Act, there must be an eye focused on a worker's capacity to function in the specific
employment role unique to them: that is, what they can or should do, or not do. In our
opinion, to arrive at such a conclusion, the examining physician does not simply walk in
lockstep with the recommended step by step procedure set out in the Guides, but
incorporates whatever exams, patient reports, tests, or research that their training and
experience directs them to use so they might arrive at a fair and comprehensive result.

In some circumstances, an examining physician might conclude the Sixth Edition
provides a sufficient basis alone to make a medically competent assessment of a worker's
impairment rating. By the same token, however, in other circumstances, the Sixth Edition
may be insufficient, requiring the examining physician to consider other reliable sources
to make a professionally informed rating. And, as with other things in the workers
compensation field, medical experts may disagree on the universe of information
underpinning "competent medical evidence" in a particular case.

The record before us does not allow for the conclusion that the comprehensive
procedure articulated by K.S.A. 2020 Supp. 44-510e(a)(2)(B) and clarified by our
Supreme Court in Johnson II was adhered to by the physicians in Garcia's case. To the
contrary, Dr. Fluter's deposition testimony reflects that he strictly adhered to the Fourth
and Sixth Editions in this matter, per counsel's request, by relying on the "appropriate"
sections and tables in the Guides to arrive at a rating for Garcia. There is no indication his
conclusion was informed by any additional resources. The same holds true for Dr.

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Estivo's assessment which yielded the rating ultimately adopted by the Board. Notably,
Dr. Fluter remarked in his report that additional information may or may not alter his
expressed conclusion. It cannot be said that the goal of the statute was accomplished here.
The percentage arising from the use of the Guides alone is but a single factor in the
assessment; the ultimate rating does not rise and fall upon it. See Johnson II, 312 Kan. at
603 (the statute has "never dictated that the functional impairment is set by [the
Guides]").

We, therefore, conclude the ALJ and the Board erred in entering an award based
on a functional impairment rating derived solely from the Sixth Edition of the Guides.
Thus, Garcia's case must be remanded for reevaluation consistent with the Supreme
Court's directive in Johnson II that ratings be grounded in a comprehensive assessment of
competent medical evidence. This may require the examining physicians to revise their
assessments of Garcia’s functional impairment to take into account additional
information they believe would augment the Sixth Edition as competent medical
evidence pertinent to her work injury. In the event that need arises, the evaluating
physicians' starting point for Garcia's rating must be the Sixth Edition. If, in a physicians'
expert medical opinion, the Guides provide too narrow a view of Garcia's ability to work
and a similarly understated functional impairment, they may (and should) augment their
evaluations using those tests, exams, reports, or resources they determine in their
professional expertise will yield a more accurate result. That includes information and
guidance that may be gleaned from the Fourth Edition or other sources they consider
reliable or authoritative within their profession.

Consistent with Zimero, we are not suggesting that physicians can calculate a
rating under the Fourth Edition, a second rating under the Sixth, and then simply combine
the two using some arithmetic formula. Such a practice would deviate from both a
conclusion relying on competent medical evidence and the holding in Johnson II. On
remand, the physician must take those steps necessary to see that Garcia's impairment

16
rating is based on a medical evaluation that encompasses relevant and competent
evidence drawn from outside the Sixth Edition if that would be proper in the examining
physician's opinion. Because a reevaluation consistent with our remand and Johnson II
could prompt a new impairment rating, whether Garcia is entitled to work disability
under K.S.A. 2020 Supp. 44-510e(a)(2)(C) will also need to be revisited once her proper
impairment rating is established.

Affirmed in part, reversed in part, and remanded with directions.

***

BRUNS, J., concurring in part and dissenting in part: Although I concur with much
of the majority's opinion, I respectfully dissent from the conclusion that the Workers
Compensation Board erred in establishing Garcia's functional impairment rating by
relying on a medical opinion that was purportedly based exclusively on the Sixth Edition
of the American Medical Association (AMA) Guides to the Evaluation of Permanent
Impairment (6th ed. 2008). I would conclude that the Board correctly interpreted and
applied Kansas law in this action. Likewise, I would conclude that there is competent
medical evidence in the record—when viewed as a whole—to support the Board's
decision.

The 2013 Kansas Legislature amended K.S.A. 44-510e(a)(2)(B) to provide:

"The extent of permanent partial general disability shall be the percentage of
functional impairment the employee sustained on account of the injury as established by
competent medical evidence and . . . for injuries occurring on and after January 1, 2015,
based on the sixth edition of the American medical association guides to the evaluation of
permanent impairment, if the impairment is contained therein." L. 2013, ch. 104, § 9;
K.S.A. 44-510e(a)(2)(B).

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 In holding the 2013 amendment to K.S.A. 44-510e(a)(2)(B) to be constitutional,
the Kansas Supreme Court held that "the language added in 2013 does not change the
essential legal standard for determining functional impairment." Johnson v. U.S. Food
Service, 312 Kan. 597, 603, 478 P.3d 776 (2021) (Johnson II). As our Supreme Court
explained, the statute "still requires that ratings be 'established by competent medical
evidence'" and the added statutory language "merely reflect[s] an update to the most
recent set of guidelines—which serve as a starting point for any medical opinion." 312
Kan. at 603. Consequently, other than updating the edition of the AMA Guides to be used
in rendering a medical opinion regarding functional impairment, "the legal substance" of
the statute "remains the same as it has been." 312 Kan. at 603.

Unfortunately, the majority's opinion ventures precariously close to the realm of
policy making under the guise of interpreting K.S.A. 44-510e(a)(2)(B). This is
particularly true in that portion of the opinion where the majority discusses the
differences between the Fourth and Sixth Editions of the AMA Guides. Of course,
"'questions of public policy are for legislative and not judicial determination, and where
. . . there is no constitutional impediment, the question of the wisdom, justice, or
expediency of the legislation is for that body and not for the courts.'" State v. Spencer
Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016) (quoting State ex rel. Fatzer v. Kansas
Turnpike Authority, 176 Kan. 683, 695, 273 P.2d 198 [1954]). Accordingly, I would
suggest that any dissatisfaction with what the majority calls a "paradigm shift between
the Fourth and Sixth Editions" involves a policy issue that should appropriately be
addressed by the Kansas Legislature and not by the courts.

Several panels of our court have previously held that the Sixth Edition of the
AMA Guides—and not the Fourth Edition—applies in workers compensation actions in
which the claimed injury occurred on or after January 1, 2015. In a published opinion
authored by Chief Judge Karen Arnold-Burger, a panel of our court held that "[w]hen
establishing an impairment rating in a workers compensation case for work injuries

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occurring after January 1, 2015, any reference to the Fourth Edition of the American
Medical Association Guides is irrelevant." Zimero v. Tyson Fresh Meats, 61 Kan. App.
2d 1, Syl. 1, 499 P.3d 1153 (2021). Chief Judge Arnold-Burger explained that under the
current version of the statute, "[w]e start with the Sixth Edition and then use competent
medical evidence to increase or decrease that guideline amount. Parties and courts do not
choose between using the Fourth Edition or the Sixth Edition. The Sixth Edition is
statutorily required." 61 Kan. App. 2d at 6.

Furthermore, in Guzzo v. Heartland Plant Innovations Inc., No. 121,811, 2021
WL 3042264, at *5 (Kan. App. 2021) (unpublished opinion)—which was heard by the
same panel that heard Zimero—it was held that in evaluating workers compensation
claims arising out of an injury occurring on or after January 1, 2015, "the Sixth Edition
and not the Fourth Edition applies." More recently, in Morris v. Shilling Construction
Co., No. 123,297, 2021 WL 5751704, at *13 (Kan. App. 2021) (unpublished opinion),
another panel of our court expressed "no reservations about adopting the Zimero court's
clarification of our Supreme Court's Johnson precedent to reject [the] assertion that the
Board violated K.S.A. 2020 Supp. 44-510e(a)(2)(B)'s plain language by solely
considering [the physician's] impairment ratings under the Sixth Edition . . . ." Similarly,
based on the statutory language found in K.S.A. 44-510e(a)(2)—as well as on the
holdings in Johnson II, Zimero, Guzzo, and Morris—I would reject Garcia's argument in
this appeal that the Workers Compensation Board erroneously interpreted the law in
determining her functional impairment rating.
'
Although I respect the majority's right to disagree with the holding in Zimero, I
find it to be significant—as did the panel in Morris—that the Kansas Supreme Court
granted a motion for publication under Supreme Court Rule 7.04(e) (2021 Kan. S. Ct. R.
46). As a result, even though Zimero is not binding on other panels of this court, it does
serve as binding precedent that must be followed by the Workers Compensation Board. I
also find the holdings in Zimero and its progeny to be consistent with our Supreme

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Court's holding in Johnson II. Rather than creating more confusion for the Board,
administrative law judges, attorneys, employers, and claimants by having conflicting
published opinions from this court on the same issue, I believe we should follow the
precedent established by Zimero.

In summary, I would conclude that the Workers Compensation Board correctly
interpreted and applied the law by applying the Sixth Edition of the AMA Guides based
on the date of Garcia's claimed injury. In addition, I would conclude that the Board's
decision was based on evidence that is substantial when viewed in light of the record as a
whole. Specifically, I would conclude that the decision reached by the Board was based
on competent medical evidence—including expert testimony as well as medical
records—and was consistent with the guidance provided by the Sixth Edition of the
AMA Guides. Thus, I would affirm the Workers Compensation Board's decision.

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