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.
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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.
Legal Update by Attorneys Alison Stewart and Jordan Gehlhaar and Law Clerk Darbi Spellman
The issues in Bryan Barry v. John Deere Dubuque Works of Deere & Company were (1) whether the Commissioner abused his discretion when he rejected an expert opinion for lack of credibility, and (2) whether the Commissioner could determine the AMA Guides were misapplied. The Claimant, Bryan Barry, suffered from bilateral carpal tunnel syndrome that arose out of and in the course of his employment with John Deere Dubuque Works. In the arbitration decision in 2017, the Deputy Commissioner determined that Barry sustained permanent partial disability of 11% to the body as a whole due to bilateral arm injuries. In 2019, Barry filed a review-reopening petition, claiming that his carpal tunnel syndrome had worsened since the arbitration decision. His petition was denied, and he appealed.
Following the arbitration award, Barry received medical care for shoulder pain he began to experience and reported some hand numbness. To support his review-reopening, Claimant had an IME with Dr. Stanley Matthew. He used Table 16-18 of the AMA Guides to evaluate Barry’s injuries and concluded that Barry had permanent impairment at “a 10% upper extremity rating to each of his elbows, a 15% upper extremity impairment of his wrists, and a 15% impairment rating as a result of loss of function of his finger joints.” Dr. Matthew further determined that Barry’s shoulder pain was separate from his other diagnoses, and he added further permanent restrictions.
Barry’s review-reopening petition was denied for failure to meet the burden of proof. The Deputy Commissioner specifically found that Dr. Matthew was not credible because he used “incorrect” sections of the AMA Guides to determine Barry’s impairment. On appeal, Barry argued the Commissioner abused his discretion by rejecting Dr. Matthew’s opinion.
Claimant first argued that the opinion should not have been rejected because it was the only opinion in the record. The Court of Appeals disagreed, stating that expert testimony may be rejected in whole or in part—even if the only opinion in the record—and the Commissioner as trier of fact is tasked with credibility determinations. However, it was found that the opinion of Dr. Sassman from the Arbitration Hearing was considered part of the record.
Barry also relied on Iowa Code Section 85.35(2)(x), which provides:
[W]hen determining functional disability and not loss of earning capacity, the extent of loss or percentage of permanent impairment shall be determined solely by utilizing the [AMA Guides], as adopted by the workers’ compensation commissioner by rule pursuant to chapter 17A. Lay testimony or agency expertise shall not be utilized in determining loss or percentage of permanent impairment pursuant to paragraph “a” through “u”, or paragraph “v” when determining functional disability and loss of earning capacity.
Claimant Barry argued this section prevents the Commissioner from finding a physician misapplied the AMA Guides. The Court of Appeals again disagreed. Dr. Matthews provided no explanation of how he reached his figures or why he relied on the portion of the AMA Guides he did. The Commissioner comparing this to Dr. Sassman’s detailed explanation, and weighing credibility, did not “run afoul of the statutory prohibition on determining ‘the extent of loss or percentage of permanent impairment’” in 85.34(2)(x).
Finally, it was found that Barry’s shoulder injury is new, and under Iowa Code § 86.14(2) for reopening an award, new injuries cannot increase the original impairment rating. New injuries are not to be deemed as a worsening of old injuries and are to be pursued in a separate proceeding.
Peddicord Wharton will continue to monitor case law on this issue.
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. ©2023 Peddicord Wharton. All Rights Reserved.
The Iowa Division of Workers’ Compensation has released updated rate information that will be in effect from July 1, 2023 through June 30, 2024. Peddicord Wharton has updated its rate and interest calculators which can be found on our website under the Resources page. We hope you will take advantage of these resources we have there for you, including our legal blog.
The Iowa Division of Workers’ Compensation releases annual rate information for mileage reimbursement and the following types of weekly workers’ compensation benefits: temporary total disability (TTD), healing period (HP), permanent partial disability (PPD), permanent total disability (PTD), and death.