TOPEKA — Kansas Secretary of State Kris Kobach and Kansas Chamber of Commerce President Mike O’Neal went toe-to-toe Wednesday on a bill designed to avoid potential court rulings that find unconstitutional the state’s latest revision to the workers’ compensation system.
Kobach’s argument to members of the Senate Commerce Committee was reforms approved by the 2013 Legislature and signed into law by Gov. Sam Brownback set up businesses to be deluged with lawsuits they had little hope of winning. O’Neal countered adjustments made two years ago were sound and the business community would be better served financially by fighting future legal threats.
“To put it briefly, a train wreck is about to happen and this committee has the power to stop it,” said Kobach, basing his analysis on recent judicial decisions in Florida and Oklahoma. “Are we headed in the same direction? I think we are. It’s extremely likely the Kansas Supreme Court is going to reach the same conclusion.”
“We would think, at best, this is a premature proposition,” O’Neal countered. “We stand in strong support of reforms this Legislature put in place both in the 2011 session and 2013 session.”
The issue pivots on approval of the bill two years ago requiring Kansas assessments of a person’s impairment after Jan. 1, 2015, to be determined by referencing the sixth edition of an American Medical Association’s guide. Until that time, the doctors, lawyers and patients involved in workers’ compensation cases had depended on the AMA’s fourth edition.
On Wednesday, the Senate committee considered contents of Senate Bill 167 that would take the state back to the fourth edition.
“The sixth edition is indeed the bible on impairment,” said O’Neal, who was a Republican House speaker before taking the Chamber of Commerce position. “If you’re going to have concerns about constitutionality or the level of benefits, the sixth edition is not the problem.”
Denise Tomasic, a workers’ compensation attorney in Kansas City, Kan., said the sixth edition significantly reduced the amount of benefit an injured employee could receive in Kansas. That was among the pro-business selling points lawmakers pointed to when voting for the switch in 2013.
She said diminishing the benefit so significantly may lead Kansas courts to conclude the state’s workers’ compensation law no longer provided an adequate, constitutional remedy for the injured. She also said employees have exposure to liability for workplace injuries when an employee’s common law right to sue an employer is replaced by a statutory remedy without meaningful compensation.
Sen. Julia Lynn, an Olathe Republican and chairwoman of the commerce committee, devoted an hour to gathering rapid-fire testimony from more than a dozen people interested in the bill’s fate. She indicated her committee wouldn’t advance legislation returning to the fourth edition during the 2015 session.
“If the committee just brushes this aside,” Kobach said, “it’s going to put Kansas businesses into multimillion-dollar lawsuits.”
AMA representative James Madara said Kansas had an obligation to work with the most scientifically advanced medical guide on impairment. The sixth edition was published in 2007, while the fourth edition came out in 1993.
“To require physicians and other health care professionals to evaluate patients based on outdated science is not in patients’ best interests,” Madara said.