In the State of Kansas at the present time when an industrial accident renders a worker permanently totally disabled from substantial and gainful employment, this would fall under the category of quadriplegics injured on the job who are alive but cannot move a muscle; workers both blinded totally and completely on his or her job due to an accident, or workers that are both rendered quadriplegics and blind as a result of an industrial accident, are limited to compensation other than medical benefits, to a total sum of $155,000.00.

The constitutionality of K.S.A. 44-510f(a)(l) which places this $155,000.00 cap on permanent total disability compensation to permanently totally disabled claimants is probably unconstitutional and here is why:

Section 18 of the Kansas Constitution Bill of Rights guarantees:

  • "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."

Section 18 guarantees the right to a remedy, and it is satisfying when the legislature provides an adequate substitute remedy, or quid pro quo (Latin for "something for something"), for the abolition of a common-law remedy." Johnson v. U.S. Foods Services, 56 Kan. App. 2d at 238-39 (emphasis added).

The Fourteenth Amendment of the United States Constitution prohibits the deprivation "of life, liberty, or property without due process of law."

The standard applied by Injured Workers of Kansas v. Franklin, 262 Kan. 840, 854, 942 P. 2d 591, 603 (1997), where the Supreme Court upheld 1993 amendments to the Workers Compensation Act states:

  • "If a remedy protected by due process is abrogated or restricted by the legislature, the change is constitutional if: [1] The change is reasonably necessary in the public interest to promote the general welfare of the people of the state; and [2] the legislature provides an adequate substitute remedy to replace the remedy which has been restricted."

The notion of an adequate quid pro quo is fundamental to the constitutionality of the Workers Compensation Act. The Act created a system in which an injured worker trades the right to a common-law tort recovery for a work-related injury, for a fixed and relatively prompt payment for such injuries after an administrative hearing and without the need to show the employer's negligence, albeit also without compensation for any pain and suffering or punitive damages for willful or wanton conduct.

K.S.A. 44-51 does not provide an adequate substitute remedy for the abolition of a permanently totally disabled worker's common-law right to sue an employer for damages. The Legislature went too far capping permanent total disability at $155,000.00 and this violates due process for permanently totally disabled Kansas workers.

In the case of Hilburn Enerpipe LTD., 309 Kan. 1127, 442 P.3d 509 (2019) the Kansas Supreme Court struck down the constitutionality of a cap on tort damages for pain and suffering as a violation of Section 5 of the Kansas Constitution Bill of Rights which states "The right of trial by jury shall be inviolate."

The claimant believes that in light of workers compensation being an exclusive remedy in which Kansas claimants are denied the right to a trial by jury then the cap on permanent total disability should be held unconstitutional in all workers compensation cases because the exclusive remedy statutes, K.S.A. 44-5a07 and 44-510e(d)(e), preclude suing in tort and obtaining a remedy including trial by jury, in exchange for what amount to an inadequate quid pro quo. Taking away permanently totally disabled workers right to trial by jury with no cap (Hilburn) and replacing it with a cap on damages for permanent total disability with the arbitrary dollar amount of $155,000.00 is on its face unconstitutional as violative of Section 5 and 18 of the Kansas Constitution Bill of Rights and also violative of the United States Constitution 14th Amendment which guarantees that States shall not deny to any person within its jurisdiction the equal protection of the law and also requires that the State respect all legal rights owed to a person, known as the due process clause of the 14th Amendment.

The State of Kansas taking away permanently totally disabled workers right to bring suit and conduct a trial by jury with no caps on damages (Hilburn) and replacing it with an exclusive remedy system (Kansas Workers Compensation Act K.S.A. 44-510e(d)(e), 445a07, and 44-510f(a)(l) which caps his or her damage claim for permanent total disability at $155,000.00 violates Sections 5 and 18 of the Kansas Constitution Bill of Rights and the 14th Amendment's equal protection and due process clauses to the United States Constitution. When the right case gets to the Kansas Supreme Court you can rest assured the caps on permanent total disability will be obliterated as they were in the Hilburn case pertaining to tort cases in the District Courts.

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