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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Defense Counsel Perspective: Five Tips for Preparing for Mediation

It remains a popular preference for plaintiffs and plaintiffs’ attorneys to attend mediation virtually despite the default rule at the Commission being in-person mediations. From the defense counsel perspective, virtual mediations can prove more difficult than in-person mediations for several reasons. First, it is easier to engage in small talk before mediation when the parties are in-person, and that advantage can make plaintiff more comfortable with the process. Additionally, it is easier to read opposing counsel’s and plaintiff’s body language when attending mediation in-person. Whether mediations are in-person or virtual, they are an important step in the litigation process. When virtual mediation is the only choice, these five steps can help you prepare effectively:

1.      Over prepare.

We all know that preparation can be the difference between a successful mediation and an unsuccessful mediation. It is important to not only know the basic facts in a case, but also to create a story. Creating a story out of the facts means identifying the theme of the case, highlighting key facts and singling out the issues you are trying to resolve. If the defense is not familiar with the case facts and issues it inevitably upsets plaintiff and hampers the ability to resolve the case.

2.      Remain flexible.

Even though you can prepare as much as possible for mediation and have a strategy laid out, mediation involves other parties’ feelings which can change your strategy and the ultimate outcome of the mediation. When this happens, being flexible will help you move the case forward, even if it does not resolve through mediation.

3.      Be familiar with opposing counsel and the mediator.

Choosing the right mediator can be key to having a successful mediation, whether it is virtual or in-person. You want to agree to mediate with a mediator that is knowledgeable in your area of law, has experience, and has the negotiation style you are looking for. Being familiar with opposing counsel’s personality will help you select the right mediator, determine your mediation strategy, anticipate their responses and maintain composure during mediation. If you are not familiar with opposing counsel, try reaching out to your colleagues to determine their reputation and negotiation style in advance.

4.      Make eye contact as much as possible.

Many times, a plaintiff will come into mediation nervous or defensive. This is likely because they are unfamiliar with the mediation process or because they believe that opposing counsel is out to “get them.” Maintaining eye contact with plaintiff will help you display empathy and will give plaintiff the feeling of being heard. If the mediation is virtual, always explain to plaintiff that you will be taking notes during the mediation, so they do not assume you are distracted during the process.

5.      Apologize, if appropriate.

Not every case requires an apology. Obviously when you are dealing with a denied case where causation or credibility are at issue, an apology is not necessary. However, if you have an admitted case and plaintiff was seriously injured and cannot return to his or her pre-injury employment, an apology goes a long way to ease plaintiff’s tension and defensiveness. It also puts plaintiff in the right frame of mind to resolve his or her case. Often, the defense counsel’s apology is the first-time plaintiff has heard a representative of the employer acknowledge the severity of the injury and the lasting effects it may have on plaintiff.

While remaining focused on the objective facts of the case is imperative, defense counsel must keep in mind that subjective nuances, such as those outlined above, can make or break a successful outcome for mediation. 

An employer’s right to direct medical treatment, long recognized as a staple of the Workers’ Compensation Act, is not total. The Court of Appeals’ January 2024 decision in Horsey v. Goodyear Tire & Rubber Co. is a reminder of that fact. Id. at 2024 N.C. App. LEXIS 61 * | 2024 WL 158256 The Plaintiff in Horsey injured his neck and shoulder while working as a tread booker. He treated with Dr. Brian Szura, who performed three surgeries on Plaintiff’s left and right shoulders. Plaintiff completed an FCE which indicated he could not return to work as a tread booker but could perform other jobs for Defendant-Employer that were within his permanent restrictions. Thereafter, Plaintiff returned to work in the “green tire” position, which was a new position. The written job description for the green tire position did not list any job demands outside of his permanent restrictions. Plaintiff alleged he was asked to do work outside of his restrictions and left the position. Plaintiff reported to the onsite medical clinic in the fall of 2018 reporting pain in both shoulders as a result of the new position. He returned to Dr. Szura in March of 2019, reporting pain, exhibiting limited range of motion, and Dr. Szura maintained the work restrictions and offered no additional orthopedic treatment.

Plaintiff, shortly thereafter and on his own initiative, sought treatment with Dr. Wilson regarding his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson did not review Plaintiff’s prior medical records and relied only on Plaintiff’s description of his medical history, which was not fully accurate. Dr. Wilson opined Plaintiff’s ongoing complaints were related to the original workers’ compensation injury and recommended an MRI of the neck and right shoulder. He did not suggest any job restrictions. The parties entered into a Consent Order on February 3, 2020, whereby Defendants agreed to authorize the MRI evaluations and corticosteroid injection recommended by Dr. Wilson with the explicit caveat that such authorization was made without prejudice and did not constitute a formal selection of Dr. Wilson as the authorized treating physician. On March 31, 2020, Dr. Wilson provided restrictions of sedentary work only and no use of the right arm.

Plaintiff continued to work in the green tire position until the Defendant-Employer’s facility was closed down in late March 2020 as a result of the COVID-19 pandemic. When the facility reopened on May 26, 2020, Plaintiff presented the sedentary work restrictions assigned by Dr. Wilson. Defendant-Employer could not accommodate the restrictions, so Plaintiff remained out of work. Defendants subsequently filed a Form 61, Denial of Claim, denying the causal relationship of Plaintiff’s cervical and radicular complaints to the original work-related injury; Plaintiff’s claim of disability; Plaintiff’s request for medical compensation; and the causal relationship of Plaintiff’s right shoulder.

On August 13, 2020, Plaintiff returned to Dr. Szura and continued to complain of shoulder pain. Dr. Szura opined Plaintiff’s symptoms were consistent with myofascial pain, and he did not recommend additional surgical intervention. He also observed Plaintiff was experiencing limitations in both his right and left shoulder range of motion.

The parties litigated the issue of a change in treating physician, among other issues, with the Full Commission finding Plaintiff sustained an exacerbation of his work-related injury as a result of being instructed to perform tasks outside of his restrictions. The Full Commission further ordered that Plaintiff’s future medical care should be provided by a provider other than Dr. Szura or Dr. Wilson. It noted as well that Plaintiff had reasonably relied upon Dr. Wilson’s sedentary work restrictions. However, the Full Commission concluded that Plaintiff failed to establish that such restrictions continue to be medically necessary. Defendants appealed to the Court of Appeals and one of the issues was whether the Full Commission erred in determining Plaintiff was entitled to a change in treating physician.

The Court of Appeals, in finding that the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians, noted first that the employer’s right to direct medical treatment (including the right to select the treating physician) was not unlimited. The Court noted that subject to approval of the Industrial Commission, an employee, even in the absence of an emergency, had the right to choose their own physician. They then also had the burden of demonstrating that the change was reasonably necessary to effect a cure, provide relief, or lessen the period of disability. The Court added that the Industrial Commission had broad discretion in approving a request for change of treating physician. It also noted that adequate justification warranting a change of treating physician existed when an employee continued to experience pain that the approved treating physician was unable or unwilling to treat.

In Horsey, the Court found competent evidence of record existed to support the Full Commission’s ruling that Plaintiff was entitled to a change in treating physicians by pointing to Dr. Szura’s failure to adequately address Plaintiff’s ongoing pain and limited range of motion. The Court further highlighted that Dr. Wilson did not review any of Plaintiff’s prior medical records before recommending surgery and had relied instead solely on Plaintiff’s recitation of his medical history, which was inaccurate. As a result, the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians or in its decision to order Plaintiff’s care be transferred to a physician other than Dr. Szura or Dr. Wilson.

Practice pointer for Defendants: if you have a Plaintiff who is continuing to complain of ongoing pain and issues, and the treating physician you have selected does not offer additional solutions, then you may want to consider sending your Plaintiff to another physician or risk your Plaintiff obtaining his own physician who provides more restrictive restrictions. In this case, Defendants also ended up being liable for TTD for the period of time when Plaintiff had sedentary restrictions from Dr. Wilson that Defendant-Employer could not accommodate as the Full Commission found, and the Court of Appeals agreed (competent evidence existed standard), that Plaintiff had reasonably relied on Dr. Wilson’s sedentary work restrictions.

KENTUCKY CHAMBER ADVANCED WORKERS' COMPENSATION SEMINAR

 
We would like to invite you to the 19th Annual Kentucky Advanced Workers' Compensation Seminar sponsored by the Kentucky Chamber of Commerce. The seminar will take place in beautiful Louisville, KY on May 9th, 2024. Click below for the agenda and registration information. We are pleased to be moderating and presenting at this informative event and hope you can attend!

WorkCompCollege.com is a community-driven effort to provide formal workers' compensation training that embraces whole person recovery management to help continue the trend towards lower costs and improved results through education, information exchange, and mentorship. WorkCompCollege.com offers comprehensive workers' compensation courses as well as state specific training. We are pleased to have partnered with WorkCompCollege.com to help produce the Kentucky training content.


KENTUCKY WORKERS' COMPENSATION CASE UPDATE

AMA Guides and Gait Derangement
General Motors v. Payne, 2023-CA-0722-WC rendered on 12/1/23, petition for rehearing filed 12/11/23 (not final)
 
Claimant fell down the stairs at work and was diagnosed with bilateral quadriceps tendon ruptures. His treating physician prescribed a cane and restricted him to seated duty only. Claimant testified he could not stand for more than one hour and could sometimes walk short distances without a cane but had difficulty maneuvering certain surfaces. Robert Byrd, M.D. (Claimant IME) assigned a 20% rating due to gait derangement and use of assisted device. Ellen Ballard, M.D. (Defense IME) assigned a 2% rating for pain and declined to use gait derangement noting that the Claimant walked in and out of her office without the cane, left the cane, was called back to retrieve it and stated that he had left it at other places but usually remembered by the time he got to his car.
 
The ALJ adopted Dr. Byrd’s opinions and the Employer appealed arguing there was no substantial evidence that Claimant routinely used an assistive device as required by the AMA Guides for the 20% rating for gait derangement. The Board affirmed the ALJ and the Employer appealed to the Kentucky Court of Appeals. The Court of Appeals also affirmed the ALJ, holding that the testimony of the Claimant, his treating doctor, and Dr. Byrd were substantive evidence to support the 20% rating. The Court reiterated the Supreme Court of Kentucky’s prior holding that an opinion must only be grounded in the AMA Guides and does not require strict adherence to the Guides. Since Dr. Byrd’s rating was based on the AMA I the ALJ did not err in choosing to rely upon that opinion.

Exclusive Remedy, Wrongful Death and Up-The-Ladder Immunity
Miller, et. al. vs. Kentucky Power Co. d/b/a Kentucky Power, et. al, 2022-CA-1200-MR rendered 11/3/23 (not final)
 
Utility company is entitled to immunity from civil liability for a tree trimmer’s fatal accident occurring while trimming a tree from the utility’s right of way. The decedent worked for Asplundh Tree Expert Company and was performing tree trimming pursuant to a contract with Kentucky Power. The surviving spouse settled a workers’ compensation claim with Asplundh Tree Expert Company. She also filed a civil suit against Kentucky Power. Kentucky Power filed a Motion for Summary Judgment arguing it was entitled to up-the-ladder immunity. Miller argued that Kentucky Power was not entitled to immunity because tree trimming was not work “of a kind that the business or similar businesses would normally perform or be expected to perform with employees.” The Court of Appeals upheld the trial court’s decision to grant Kentucky Power summary judgment, finding that tree trimming was recurrent maintenance work required by law.
 
Going and Coming Rule and Traveling Employee Exception
Lee v. W.G. Yates & Sons Construction Co., 2023-CA-0695-WC rendered 10/27/23 (not final)
 
Claimant works in construction and is a permanent resident in Louisiana where he lives with his wife and daughter. Employer is a construction company based in Mississippi that accepts jobs all over the country and recruits employees nationwide to work those jobs. Employer hired Claimant as a general foreman for a construction project in Kentucky and only for that project. Once hired, Claimant pulled his travel trailer with his pickup truck to a campground near the construction site where he stayed for the entirety of the employment for this job. He was not reimbursed for his travel to the job site but was provided a $100 daily per diem for food and lodging expenses. Employer had also approached Claimant regarding a future project in Mississippi, but no former agreement had been finalized.
 
After clocking out of work early in the morning and returning to his trailer, Claimant left his trailer to join a friend for dinner. He was scheduled to begin work again later that evening. On his way to the restaurant, Claimant was injured when a vehicle struck his motorcycle. The ALJ found the injury did not occur in the course and scope of employment and the Claimant was not a travelling employee. He had relocated for the job and the only travel he engaged in was reporting to a static work site. The Court of Appeals reversed, holding the Claimant was a travelling employee whose travel to Kentucky was a service to the employer. As he was not engaged in a significant deviation from the purpose of his trip at the time of the accident, the claim is compensable.


 
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.


H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

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.

"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 

“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)
 

 

"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.

“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.
 

“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!

“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.