State News

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


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"Money" (Pink Floyd)

 
Here are the top-billing workers’ compensation attorneys for 2023 according to the DWC along with the average number of hours worked per day assuming they billed at the DWC’s maximum rate of $200 per hour and worked every single day of the year, weekends and holidays included: 
 
Carrier AttorneyApproved FeesHours Per Day
Dean Pappas$923,472.5012.65
Jeremy Lunn$640,487.008.77
Mark Midkiff$523,012.207.16
   
Claimant AttorneyApproved FeesHours Per Day
Adam Henderson$1,029,800.0014.10
Bill Abbott$923,175.0012.64
Fyodor Clay$817,950.0011.20
 
On the claimant attorney side, Adam Henderson moves up from number two to number one this year overtaking Bill Abbott who was number one in 2022. Mr. Henderson was indicted for billing fraud by a Travis County grand jury in 2021. You can read the indictment here. Mr. Henderson’s criminal case remains pending with a pre-trial hearing scheduled for March 20, 2024. 
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2023, click the following link: Top 100 2023.


Copyright 2024, Stone Loughlin & Swanson, LLP 

It’s a beautiful Monday and with Spring just around the corner, we can’t help but be happy. After all, “Here Comes the Sun” (The Beatles) and we are looking forward to “Spring Vacation” (The Beach Boys)! There’s nothing like the power of music to help enhance the mood and make everything better!
 

"I Want You Back" (The Jackson 5)

 

 
We’ve frequently sounded the alarm over the years about the serious decline in the numbers of qualified doctors providing services in the workers’ comp system. Low reimbursement rates are one reason for the mass exodus from the system. After all, DWC has not adjusted reimbursement rates for workers’ compensation providers since January 2008. (Per a nifty online inflation calculator, $100 in 2008 has the same purchasing power in 2024 as $139.73.) 

Noting that this decline has been “particularly pronounced” among certified designated doctors and “especially” among licensed medical doctors and doctors of osteopathy, new rules were finally adopted this past month to more fairly compensate doctors performing MMI/IR and other DD exams. In sum, the rules were amended to: 
  • adjust fees by applying the Medicare Economic Index (MEI) percentage adjustment factor, with an annual adjustment on January 1st;
  • eliminate unnecessary billing modifiers and replace the diagnosis-related estimate (DRE) and range of motion (ROM) billing methods with a single method of billing;
  • create a $100 missed appointment fee and a $300 specialist fee;
  • pay DDs and RMEs for all issues addressed within one exam without reduction;
  • require an “assignment number” to assist a carrier with identifying a bill as originating from a designated doctor or a DD’s referral;
  • clarify that the 95-day period for submission of a DD’s bill begins on the date of service for additional testing or referral evaluation.
The new rules will take effect on June 1, 2024.

“Like a Surgeon” (“Weird Al” Yankovic)

 
Under the category of notable enforcement actions, Richard Levy, MD (Dallas) was recently cited for performing unreasonable or medically unnecessary procedures, failing to document adequate explanations for deviating from the ODG, and submitting substantially similar reports amongst three different injured employees.  

Dr. Levy was ordered to pay an administrative penalty of $3,000; to attend and successfully complete a medical record keeping seminar and six hours of continuing medical education on the topic of shoulder arthroscopy or orthopedic shoulder surgery; and to purchase and maintain a current subscription to the ODG.

Also notable, James William Butler, MD (Houston) received a public reprimand for repeatedly failing to submit a DD report timely and was ordered to pay a penalty of $500. 

“So Long, Farewell” (Rodgers & Hammerstein)



 
Our kind friend, Benefit Review Officer Catherine Ripley, is retiring from the Division in a few short weeks. We wish her well!

“Let’s Get Together” (Hayley Mills)



DWC is offering quarterly webinars through Zoom to help system participants keep up with the latest information and trends. Sign up here for invitations to register each quarter.

Webinar recordings will be available at any time on the CompCourses webpage here.
 

"Tell Me What I Did Wrong" (James Brown)


The DWC is soliciting suggestions for new rules or revisions to DWC’s existing rules. If you have a proposal, you can complete the form on the TDI website here.

“Hello Again” (Neil Diamond)

 
We sometimes question whether appeals from bad CCH decisions end up in File 13, as the few decisions that are rendered each month by the Appeals Panel often address trivial issues like a “stipulation…incorrectly identifies a cervical strain rather than cervical sprain” (APD 231661). So we get excited when the Panel issues a decision that actually addresses the merits of a case. This month, we present two examples of decisions that give us hope: 

The Appeals Panel reversed an ALJ who adopted a designated doctor’s 20% impairment rating, which was assessed for “requiring routine use of cane” when the records reflected the claimant did not require routine use of a cane. The Appeals Panel refused to adopt a certification by the post-DD required medical examiner because the doctor assigned impairment ratings based only on his observations of the claimant while in and outside the office due to the claimant’s refusal to complete paperwork or undergo an examination unless he was allowed to record the exam and have a witness other than his treating doctor. The Panel thus remanded the case to the ALJ with instructions to ask the DD why he assigned an IR that required routine use of a cane when the claimant was independent with ambulation activities without the need of an assistive device. (AP Decision No. 231830) Note: The Appeals Panel did not address what the Carrier’s remedy is when they are thwarted by a claimant from obtaining an opinion from an RME doctor, although they did reference Rule 126.6(j) in a footnote and state that this was not an issue in the instant case. Rule 126.6(j) merely provides a carrier the right to suspend TIBs if a claimant fails to attend an RME and fails to reschedule. 

The Appeals Panel reversed an ALJ who found that a carrier did not sufficiently raise a defense of horseplay on its PLN-1 and therefore, the carrier was deemed liable for an injury despite the fact that the claimant’s horseplay was a producing cause of the injury. The Panel noted that “magic words are not necessary to contest the compensability” of a claim and reversing the ALJ, said that the carrier had sufficiently described the reasons for the dispute when it wrote “Investigation reveals the injured worker was riding a co-workers [sic] motorcycle recklessly at the time of the injury and was not furthering the affairs of the employer at the time of this incident.” (AP Decision No. 231750)
 

 

“Born on the Bayou” (Creedence Clearwater Revival)

 
For those of you who are clients of Stone Loughlin & Swanson, we would love to offer you the invitation to attend the upcoming NWCDN conference in New Orleans May 16th. Details will follow, but if you would like to be invited, please respond to Jane Stone and it will be done!
 

Legal Update by Attorney Sandra Kromminga

The issues in Tweeten d/b/a Tweeten Farms v. Tweeten were: (1) Does the statutory bar under Iowa Code section 85.35(9) preclude further benefits following a compromise settlement between a claimant and the Second Injury Fund of Iowa (“SIF”); (2) Does the discovery rule toll the statute of limitations following amendments to Iowa Code section 85.26(1); and (3) How do amendments to Iowa Code section 85.39(2) affect reimbursement for independent medical examinations? This case was argued by Attorney Christopher S. Spencer.

The Claimant, Corey Tweeten, worked for his father on the family farm, Tweeten Farms. While Claimant and his father were vacuuming grain out of a bin on July 25, 2017, the Claimant injured his right arm. The Claimant sought treatment on August 14 and was diagnosed with right lateral epicondylitis or ‘tennis elbow.’ The Claimant eventually underwent an MRI in May of 2018 that showed a “significant deltoid insertional tear.” Surgery to repair the deltoid was done on June 18. At a follow-up appointment in October, Dr. Warme opined that Corey had likely overcompensated for the tennis elbow which had caused the deltoid tear. Dr. Warme believed that both injuries were related to the July 2017 grain bin incident.

In January of 2020, the Claimant filed an arbitration petition seeking benefits from Tweeten Farms and Grinnell Mutual for an upper right extremity injury, asserting his injury date was February 1, 2018. The Petition also included a claim against the Second Injury Fund of Iowa, premised on a prior right ankle injury in 2008. The Claimant also sought reimbursement for an independent medical evaluation (“IME”) with Dr. Robin Sassman at hearing. The cost of the IME was $4,650.00.

An arbitration hearing was set for March of 2021. The Second Injury Fund of Iowa filed a notice that they had reached a settlement with the Claimant and would not be at the upcoming hearing pending approval of the settlement. The case proceeded to hearing. In Defendants’ April 13 Post-Hearing Brief, they argued that the Compromise Settlement with the Second Injury Fund of Iowa extinguished Claimant’s claims for benefits under section 85.35(9). This divested the workers’ compensation Commissioner of jurisdiction to award him additional benefits. The settlement was approved in April. The deputy found that the Claimant did not learn of the seriousness of his injury until April 2018, meaning that his January 21, 2020, Petition was not barred by the two-year statute of limitations in section 85.26.

The Iowa Supreme Court held that the Commissioner’s decision in Millbrandt v. R.R. Donnelly recognized that “a claim brought by a claimant against the SIF is distinct from a claim brought by a claimant against an employer and an insurance carrier,” such that the claim against the employer was not “regarding the subject matter of the compromise.” Compromise settlements between an employee and the Second Injury Fund of Iowa will not always bar an employee from seeking benefits from their employer, but the extent of any bar will depend on the subject matter of the compromise. In this instance, the dispute was as to the applicability of the Second Injury Fund Act related to the prior loss in 2008.

As for the applicability of the discovery rule, the Court held that for purposes of section 85.26, the two-year statutory period begins to run when the employee knows or should have known that an injury is work-related, without regard to whether the injury is also serious enough to be compensable. The Claimant knew that he had a right-arm injury that was work-related more than two years before he sought benefits, and his claim is therefore barred as untimely. This holding modifies the prior common law discovery rule that would have tolled the statute of limitations until the injured worker also knew of the seriousness of the claimed injury.

Finally, the Court determined that Claimant was not entitled to reimbursement for Dr. Sassman’s examination under Iowa Code 85.39. The Claimant’s Petition had been untimely, meaning his injury was not compensable, and, as a result, was not entitled to reimbursement.


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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2024 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Morgan Todd Borron

In 2017, the Iowa Legislature overhauled Iowa Code Chapter 85 and made numerous amendments to previously established workers’ compensation statutes, and the impact of those amendments continues to be the center of much of the workers’ compensation litigation in Iowa today.

Iowa Code § 85.39 was one of the statutes subject to the 2017 amendments. Attorneys Stephen W. Spencer and Christopher S. Spencer of Peddicord Wharton recently had the opportunity to bring a case to the Iowa Supreme Court to clarify the impact that the 2017 amendment has had on reimbursement of independent medical examinations (“IME”) per § 85.39. The case was retained by the Iowa Supreme Court on further review from a decision of the Iowa Court of Appeals.

In Mid American Construction, LLC v. Sandlin, Claimant presented for an exam with Dr. Kennedy. There was a dispute as to whether Dr. Kennedy was retained by the Employer and Insurance Carrier for purposes of triggering Iowa Code § 85.39, but the issue was decided in favor of the Claimant on factual grounds. Thereafter, Sandlin’s counsel arranged for Claimant to be evaluated by Dr. Taylor for an IME and requested reimbursement for Dr. Taylor’s fees associated with the IME, in the amount of $2,020, per Iowa Code § 85.39. Defendants contended that, per Iowa Code § 85.39 as amended in 2017, Claimant was only entitled to reimbursement for the cost to obtain an impairment rating of his own to rebut the rating of Dr. Kennedy, and not the cost of the entire IME.

The Iowa Court of Appeals found that the 2017 amendment to Iowa Code § 85.39 limited the Claimant to solely the costs to perform an impairment rating. On further review, the Iowa Supreme Court held that Iowa Code § 85.39, as amended, entitles employees to the reasonable cost of an examination conducted by a physician of their choosing, in addition to the cost of that physician’s determination of impairment, and not merely the cost assessed for the impairment rating itself. See Mid American Construction, LLC v. Sandlin, No. 22-0471, 2024 WL 500652 at *1, *9 (Iowa Ct. App. Feb. 9, 2024). Further, that the reasonableness of the IME physician’s fees for the examination are to be analyzed in conjunction with what physicians in that locality typically charge for an IME, “including costs of reviewing medical records, conducting a physical examination, opining on causation, assessing permanent impairment, assigning restrictions, and addressing further treatment recommendations.” Id. at *9 (quoting Turner v. NCI Bldg. Sys., Inc., Iowa Workers’ Comp. Comm’n No. 1652235.01, 2022 WL 1787301 at *26 (Feb. 24, 2022). 


If you'd like to sign up for our e-newsletter, please click here.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2024 Peddicord Wharton. All Rights Reserved.


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