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August 3, 2018 Digests

Posted By Administration, Tuesday, August 7, 2018

Kansas Court of Appeals


NO. 116,483—AUGUST 3, 2018

FACTS: Robinson was convicted of reckless second-degree murder and aggravated arson after he started a house fire which resulted in the death of an occupant. Those convictions were affirmed on direct appeal. Robinson then filed a motion for habeas corpus relief in which he alleged that he was prejudiced by the ineffective assistance of trial counsel. After an extensive evidentiary hearing, the district court found that trial counsel was ineffective for failing to investigate and present expert testimony that would counter the State's expert witness. Finding that Robinson was prejudiced by these errors and the cumulative damage they did, the court ordered a new trial for Robinson. The State appeals that finding. Robinson cross-appealed the district court's denial of other arguments.

ISSUES: (1) Expert witness testimony; (2) cross-appeal

HELD: Although expert testimony about causation can be crucial in an arson case, defense counsel did not consult with an arson expert. He spoke with one witness less than two weeks before trial. Evidence presented at the habeas corpus hearing showed that expert testimony could have poked significant holes in the State's case. Trial counsel's failure to obtain assistance from an expert resulted in a less than complete investigation and provided prejudicially ineffective assistance to Robinson. None of the issues raised by Robinson in his cross-appeal independently require a new trial.

STATUTES: No statutes cited.

NO. 117,725—AUGUST 3, 2018

FACTS: Johnson was injured while performing his job as a truck driver. After surgery, Johnson was returned to work but he was still experiencing symptoms. Johnson's surgeon used the Sixth Edition of the AMA guides when assigning Johnson a permanent impairment rating of 6% of the whole person. The surgeon noted that under the Fourth Edition of that Guide, Johnson would have received a 25% impairment rating, which the doctor believed was more accurate. The Board affirmed the 6% impairment rating, but neither the ALJ nor the Board had the authority to address Johnson's claim that use of the Sixth Edition was unconstitutional on its face. He now raises that issue on appeal.

ISSUES: (1) Facial constitutionality of K.S.A. 2015 Supp. 44-510e

HELD: Kansans have a constitutional right to remedy. The workers compensation statutes allow injured workers to trade certain benefits for the common law right to sue. But this quid pro quo is constitutional only if the certain benefits are adequate. The legislature's adoption of the Sixth Edition resulted in a system that no longer provides an adequate remedy. In the absence of any scientific reason to adopt the Sixth Edition, the use of that Guide results in an unconstitutional system. The appropriate remedy is to reinstate the Fourth Edition. This case must be remanded for recalculation using that Guide.

STATUTES: Kansas Constitution Bill of Rights, § 18; K.S.A. 2015 Supp. 44-510c(a)(1), -510c(a)(2), -510c(c), -510d(b)(23), -510d(b)(24), -510e, -510e(a)(2)(B), -510e(a)(2)(C), -510h; K.S.A. 44-574(b)

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