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.
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).
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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.
The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services. The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3. That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”
On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.
As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case. The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail. The overhaul law which was passed last week changed the presumption to a much higher legal standard. Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work. This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation.
What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard. The defense must demonstrate a high probability that its position is accurate.
The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics. Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption? Unfortunately, this new law does not provide any commentary. Here is what it says:
Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.” Some have asked what the word “counterpart” means. This is not a legal term, so one can study a dictionary definition. The word “counterpart” is defined as someone who performs a function that corresponds to that of another person. Example, the Manager of a baseball team is the counterpart to the Coach of a football team. They perform similar services for their respective teams. Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT?
Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill. There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs. It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement. Example: a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services. Does that make the private sector EMT a “counterpart” under the above definition? Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home? No one knows the answer, but we do know this: arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes. Those cases will be tried in the courts, which will eventually provide us with an answer.
It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted. The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.
The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.” This language is also new. The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’” In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply. Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Several bills of interest
are advancing in the Committee process in the West Virginia Senate and House related to Workers’ Compensation. With the exception of the bills related to presumptions of compensability in firefighters for named diseases, the bills do not have much momentum at this time. Please contact me if you want a copy of a proposed bill or would like additional information.Senate Bill 597 grants twenty weeks (or 5% permanent partial disability)
awards of worker's compensation benefits to claimants with no measurable
pulmonary impairment from occupational pneumoconiosis (OP). Additionally,
claimants with an x-ray diagnosis of pulmonary massive fibrosis or complicated
pneumoconiosis without measurable impairment would be granted a 25% permanent
partial disability award. The OIC’s Fiscal Note Memorandum states that the
additional benefits are likely to significantly increase the expenses and could
cause a deficit for the Worker's Compensation Old Fund and create adverse
claims development in the other funds administered by the OIC with exposure to
OP claims. The increased benefits are likely to raise private insurance carrier
worker's compensation insurance premium rates for employers in industries where
exposure to OP exists. Senate Bill 597 is also likely to significantly increase
the worker's compensation expense for self-insured employers in the coal
industry. As drafted, Senate Bill 597 appears to be retroactive and would
effectively restore the presumptive 5% OP award for both past (July 1, 2003
forward) and future OP claims. Additionally, it is unclear if the 5%
presumptive award is to be granted in addition to the 25% award for those
diagnosed with pulmonary fibrosis or complicated pneumoconiosis, or if those
two awards are mutually exclusive.
Senate Bill 286 would extend the time within which a claimant may
obtain an evaluation from the Occupational Pneumoconiosis Board. In its Fiscal
Note Memorandum, the OIC stated it is unable to estimate the fiscal impact of
SB 286. The OIC does not have data regarding any OP claim applicants being
denied a hearing before the OP Board due to time limitations exceeding three
years or due to the lack of an impairment diagnosis. The OIC believes that SB
286 would increase the expenses of the OIC, but the OIC is unable to quantify
the increased expenses accurately at this time. The OIC funds the costs of the
OP Board and any increase in the number of examinations undertaken by the OP
Board would increase the expense of the OIC.
House Bill 4283 would create a new program and new Fund called the West Virginia Black Lung Program, which would create entitlement benefits and a presumptive award for those benefits for occupational pneumoconiosis. In its Fiscal Note to this proposed bill, the OIC stated it is unable to estimate all of the potential cost to the State for HB 4283. The OIC did note some technical issues with HB 4283. West Virginia Code §23-4D-2 grants the presumptive benefit to anyone who has worked in WV for a period of 10 years during the 15 years immediately preceding the Date of Last Exposure. The language in the proposed bill does not limit the exposure to coal dust, so any type of minute dust particle would appear to qualify. The language in the proposed bill does not limit the benefits to WV residents, but would be available to anyone who has worked in WV for the above specified period of employment. The benefit to be granted is a fixed amount and is to be paid in addition to any state or federal disability award. The bill appears to be retroactive in nature. HB 4283 creates a new general revenue fund, but does not clearly identify who is to administer the Fund. The OIC noted the State Tax Department should be consulted regarding the increased severance taxes and the creation of the new taxes on energy producing activities.
HB 4687 which would repeal the law making prime contractors liable for the failure of subcontractors to obtain workers’ compensation coverage. The OIC’s Fiscal Note predicted HB 4687, if enacted, would have a significant impact on the Uninsured Employers Fund (UEF). Present law provides that if a subcontractor is neither self-insured, nor covered by a workers' compensation insurance policy, then the prime contractor rather than the state's UEF is responsible for payment of statutory workers’ compensation benefits: provided, that receipt of the prime contractor of a certificate of coverage from a subcontractor shall be deemed to relieve the prime contractor of responsibility regarding the subcontractor's workers' compensation coverage. The OIC stated in its Fiscal Note that it has not had to issue an assessment in order to raise funds for the UEF since its creation in 2006. However, in the event that additional funding is needed, the OIC has the statutory authority to issue an assessment to private insurance carriers, which may be passed on to employers through a policy surcharge, as well as to self-insured employers to raise the necessary funding for the UEF.
HB 5244 relates to portable benefit plans for independent contractors. It creates a new State Portable Benefit Fund to provide portable benefit plans that individuals can purchase. A benefit plan would be assigned to an independent contractor and would not be associated with the hiring party. The statute has language that a hiring party can contribute to these plans but the contribution would not be construed as an element of an employment relationship for purposes of determining workers’ compensation coverage.
SB 170 expands coverages related to professional firefighters and a rebuttable presumption to include bladder cancer, mesothelioma, and testicular cancer to join leukemia, lymphoma, and multiple myeloma previously passed by statute. The purpose of this bill is to include three types of cancer for which rebuttable presumption of injury from employment exists for firefighters and provides that the presumption for the three types of cancer expires July 1, 2027, unless extended by the Legislature.
HB 4216 reaffirms and enhances the workers compensation exclusive remedy rule or doctrine and would repeal the deliberate intent statute in its entirety.
For the mining industry members, eight bills not included on the
attached Legislative Monitor Report have been introduced to authorize the Office
of Miners’ Health Safety and Training (WVMHST) to promulgate legislative rules
for a variety of safety issues including substance abuse screening, standards
and procedures. The bills were referred to the Judiciary Committee on 1/19/24.
Dill Battle, Executive Secretary
West Virginia Workers’ Compensation Association
o 304-340-3823
m 304-206-1986
In South Dakota, Claimants must prove that "employment or employment-related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment-related injury is and remains a major contributing cause of the disability, impairment, or need for treatment." Norton v. Deuel Sch. Dist. No. 19-4, 2004 S.D. 6, ¶ 7, 674 N.W.2d 518, 521. Additionally, the South Dakota Supreme Court has held that “the claimant's work activities do not have to be ‘‘the’ major contributing cause’’ of the injury; they only have to be ‘‘a’ major contributing cause.’” Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, ¶ 20, 959 N.W.2d 903, 909 (citations omitted). “[T]he claimant has the burden of establishing a ‘causal connection between the employment and the disability.’” "Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D. 1992) (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 7010 (S.D.1989)).
Causation is a medical question, and “[t]he testimony of professionals is crucial in establishing this causal relationship because the field is one in which laymen ordinarily are unqualified to express an opinion.” Id.
We have started to encourage our clients to challenge claimants treating doctor(s) and their medical opinions with competing IMEs. In two separate 2023 cases, both of which are currently under appeal, the South Dakota Department of Labor (“the Department”) sided with the employer and the insurer finding that the claimants failed to meet their burden of proving that the work injuries were a major contributing cause of their conditions.
First in Roem v. E & N Street, LLC., HF No. 69, 2020/21, the claimant was suffering from a wide range of injuries including neck issues, headaches, right shoulder and arm pain, potential CRPS and chronic pain. The claimant had three separate treating doctors who looked at the neck injury. One of the doctors found the claimant’s injuries to be a major contributing cause, another stated that there could be other causes of the claimant’s neck issues but he did not know if the condition was preexisting, and the other did not see any objective evidence of acute injuries. The employer had an IME completed and the doctor found that the claimant had some degeneration in the neck as well as a lack of any acute findings. The Department found the IME doctor's opinions to be “more persuasive” and stated that his findings were “particularly significant.” As to the neck injuries, the Department held that the work incident was not a major contributing cause of the injury. When looking at the claimant’s shoulder injury, one of the treating doctors failed to provide an opinion connecting the shoulder issues to work, thus the Department held there was not sufficient evidence to meet the claimant’s burden of proof. The Department continued to side with the IME doctor’s opinions on all alleged injuries often stating that the IME was “more persuasive” or that the treating doctor's opinions failed to establish the claimant’s burden of proof. Specifically, as to the CRPS diagnosis, the Department was not persuaded by the treating doctors' opinions because the opinions were “not definitive” and one of the doctors concluded that CRPS was “merely possible, but not probable.” The Department held that the claimant’s expert opinions did not meet her burden of proving medical probability or that the work was a major contributing cause of any of the injuries.
Similarly, in Pham v. Smithfield Foods, Sioux Falls, HF No. 8, 2020/21, the Department sided with the employer’s IME doctor's findings as opposed to the claimant’s treating doctors. Specifically, the Department was moved by the fact that the IME doctor reviewed all of the claimant's prior medical records when forming his opinion whereas the treating doctor failed to review the claimant's entire medical history. The Department stated that due to the treating doctor’s failure to review the claimant’s medical history in its entirety, his opinion was “not well-supported.” Additionally, the Department found the IME doctor’s opinion to be “more persuasive” and described his analysis of the claimant’s injuries as “particularly significant.”
All in all, we are finding that an IME with strong opinions therein can persuade a factfinder that just because the claimant’s treating doctor makes an opinion or recommendation, does not mean that their opinion is always the most informed or proper under the circumstances.