State News

Positive Drug Tests and Penalty Exposure After Ramirez v. IWCC, What Employers and Carriers Should Know When Managing Early Claims - Jigar Desai

In Ramirez v. Illinois Workers’ Compensation Commission (2025 IL App (1st) 242467WC), the Illinois Appellate Court recently issued an important decision for employers and carriers handling post-accident drug tests.

The case involved an injured employee who tested positive for marijuana after a work accident. The employer delayed benefits, arguing the positive test raised questions about impairment. Ultimately, the Appellate Court ruled that the employer acted unreasonably in withholding benefits because the drug test lacked supporting evidence to show impairment under the Illinois Workers’ Compensation Act.

The Court reinstated penalties and attorney fees, emphasizing that a positive test alone — without concentration levels, expert interpretation, or other factual context — does not justify delay or denial of benefits.

Why It Matters

Most employers and insurers do not require immediate defense representation or guidance when a claim is first reported. A drug test result often arrives within days of an accident, and claim handlers must decide whether to pay or delay benefits before counsel becomes involved.

Ramirez clarifies that the Commission and Courts expect any delay or denial based on a drug test to rest on objective, documented evidence. Without that foundation, employers risk exposure to penalties under Sections 19(k), 19(l), and 16 of the Illinois Workers’ Compensation Act.

Key Takeaways from Ramirez

1. A Positive Test Alone Is Not Enough.
• The Court made clear that a test result — even if it shows THC or another controlled substance — cannot by itself prove intoxication or justify a denial.
• To rely on the intoxication defense under Section 11, the employer must show the employee was impaired at the time of injury and that impairment caused the accident.
2. Reasonableness Is the Standard for Penalties.
• If benefits are delayed, the employer must demonstrate a reasonable, fact-based justification for doing so.
• In Ramirez, the absence of details such as test type, concentration levels, timing, or observed impairment made the delay unreasonable.
3. Documentation Is Everything.
• The decision emphasizes recordkeeping: contemporaneous notes, witness observations, and clear timelines can make the difference between a defensible claim and penalty exposure.

Best Practices for Employers and Claims Handlers

1. Secure a Properly Documented Drug Test.  Section 11 provides that no compensation is payable if an employee’s intoxication is the proximate cause of the injury or if the employee was so intoxicated that the intoxication constituted a departure from employment. However, the statute also establishes strict evidentiary requirements. 

A rebuttable presumption of intoxication arises only when:

·       There is 0.08% or more alcohol by weight in the employee’s blood, breath, or urine, or

·       There is any evidence of impairment due to unlawful or unauthorized use of cannabis, controlled substances, or intoxicating compounds, or

·       The employee refuses to submit to testing.

·       To rely on this presumption, the employer must prove that the test was performed by an accredited or certified testing laboratory and followed Commission rules for collection, chain of custody, split testing, documentation, and analytical procedures.  Tests that do not meet these standards are inadmissible, as confirmed in Ramirez v. IWCC (2025 IL App (1st) 242467WC).

2. Obtain the testing lab’s certification, chain-of-custody forms, and the collector’s documentation.
3. Confirm that split testing was used and that the sample was handled according to recognized procedures.
4. Request quantitative results, not just “positive” or “negative.” THC, for example, must include concentration levels to assess impairment.

5.     Retain copies of all documentation, including consent forms, lab certifications, and test methodology.

6. Document Observations Immediately.
• Have supervisors and co-workers record any signs of impairment (odor, behavior, coordination, etc.) at or near the time of injury.
• A short written statement can later establish the factual basis for your initial claim decision.
7. Record the Employer’s Rationale for Delay.
• If benefits are temporarily withheld pending investigation, document the reasons clearly — e.g. “awaiting certified test results” or “reviewing chain of custody documentation.”
• Make sure the claim file shows the decision was based on evidence, not assumption.
8. Communicate Early and Clearly.
• Notify the employee (and the insurer, if applicable) that the claim is under investigation.
• Avoid blanket denials.  Instead, frame the delay as an effort to gather additional information.
9. Consult Counsel Promptly.
• Once results are confirmed, seek legal input before issuing a denial.  Counsel can assess whether the test meets statutory standards and whether sufficient evidence exists to assert intoxication as a defense.
10. Do Not Overlook Other Evidence.
• Review surveillance footage, witness statements, and equipment logs.
• Often, the best defense to penalty exposure is showing a well-documented, balanced investigation — even if the claim is later found compensable.

The Ramirez decision does not eliminate the intoxication defense — it simply reminds employers that the defense must be supported by admissible and credible evidence. A positive test result can still be relevant, but it must be contextualized and properly documented.

For claims professionals and employers, the message is clear:  Investigate promptly, document thoroughly, and justify every delay with evidence. Doing so not only protects against penalties but also strengthens the employer’s credibility when the case eventually reaches defense counsel or the Commission.

Final Thought

In Illinois, the window between an accident and counsel involvement is often the most critical. Ramirez teaches that what happens in those first few weeks — how the employer documents the event, tests, and communications — will often determine whether the case is defensible later.

A structured, evidence-driven response to post-accident drug tests is no longer just best practice; after Ramirez, it is a legal necessity.

Collateral Estoppel Bars Relitigation of Causation: City of Zion Police Department v. Illinois Workers’ Compensation Commission – Jigar Desai

In City of Zion Police Department v. Illinois Workers’ Compensation Commission, 2025 IL App (2d) 240758WC-U, the Appellate Court affirmed the Circuit Court’s reversal of the Illinois Workers’ Compensation Commission, holding that claimant James Labonne was collaterally estopped from relitigating causation for his right wrist injury.

Labonne, a police detective, claimed bilateral wrist injuries after performing a “burpee” exercise during firearms training. He sought workers’ compensation benefits under the Illinois Workers’ Compensation Act (“Act”). Respondent argued that Labonne had already litigated the issue before the Zion Police Pension Board, which denied “line-of-duty” disability benefits but awarded “non-duty” benefits. Labonne did not appeal the Pension Board’s decision, which became final.

The Commission initially awarded benefits, finding collateral estoppel did not apply. On review, however, the Circuit Court determined that the Pension Board’s decision conclusively resolved causation, accident timing, and credibility issues. The Appellate Court affirmed, noting that:

• The Pension Board’s determination that the injury did not occur during an act of duty was identical to the causation issue under the Act.
• The decision was final and binding; Labonne had a full and fair opportunity to litigate the issues before the Pension Board.
• Collateral estoppel applied because Labonne had been a party to both proceedings and the issues were necessarily decided.

Impact on Workers’ Compensation Law:  Labonne underscores that prior administrative decisions — such as Pension Board determinations — can bar subsequent workers’ compensation claims when the issues are identical, the decision is final, and the claimant had a full and fair opportunity to litigate. In particular, it aligns with prior case law equating “duty” determinations under the Pension Code with “arising out of and in the course of employment” determinations under the Act.

Best Practices for Employers and Claims Handlers

1. Check Pension or Other Prior Decisions Early:  Review any prior pension, insurance, or administrative determinations before investigating a workers’ compensation claim. These can provide defensible grounds to challenge causation or accident-related claims.
2. Document Reporting and Treatment Delays:  In Labonne, failure to promptly report the injury and inconsistent medical records supported the Pension Board’s finding. Clear documentation of reporting and treatment timelines can be critical evidence.
3. Evaluate Collateral Estoppel Opportunities:  If a claimant has litigated a similar issue in another forum, consult counsel to assess whether collateral estoppel can bar or limit workers’ compensation benefits.
4. Confirm Claimant’s Party Status and Opportunity to Litigate:  Collateral estoppel applies only if the claimant was a party (or in privity) and had a full and fair opportunity to contest the prior proceeding. Ensure these elements exist before asserting the defense.
5. Coordinate Evidence Across Forums: Keep track of medical records, depositions, and other evidence presented in pension hearings or related administrative proceedings; this may streamline defenses in workers’ compensation proceedings.

Labonne reinforces that prior adjudications, including Pension Board determinations, can decisively impact workers’ compensation claims.  Prompt review of prior decisions, thorough documentation of injury reporting and treatment, and strategic use of collateral estoppel can protect employers from unnecessary exposure.

Significant debate and litigation have continued to stem from the Iowa legislature’s 2017 amendment to Iowa Code section 85.34(2)(v) and its impact on an injured worker’s entitlement to a traditional industrial disability analysis. Attorneys Lee Hook, Michael Roling, Christopher Spencer, and Morgan Todd Borron of Peddicord Lillis recently had the opportunity to bring a case before the Iowa Supreme Court to clarify just that.

An injury is unscheduled if it is an injury “other than those . . . described or referred to in paragraphs ‘a’ through ‘u’” of § 85.34(2). See Iowa Code § 85.34(2)(v). Prior to the 2017 amendment, all unscheduled injuries were considered a “whole person” or “body as a whole” injury, which result in industrial disability analysis.

When the legislature amended § 85.34(2)(v) in 2017, it retained the only existing sentence and added three new sentences to the end of the subsection; the statute is now comprised of a total of four sentences. The first two sentences of § 85.34(2)(v) provide a default rule for compensating nonscheduled injuries—that is, such injuries are to be compensated based on the reduction in the employee’s earning capacity (i.e., industrial disability). Iowa Code § 85.34(2)(v). This was the default rule prior to the 2017 amendment of this statute. Central to the ongoing debate and litigation were the legislature’s addition of the third and fourth sentences to Iowa Code § 85.34(2)(v) as a part of the 2017 amendments. Together, the third and fourth sentences provide:

[3] If an employee who is eligible for compensation under this paragraph returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages, or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee's functional impairment resulting from the injury, and not in relation to the employee's earning capacity. [4] Notwithstanding section 85.26, subsection 2, if an employee who is eligible for compensation under this paragraph returns to work with the same employer and is compensated based only upon the employee's functional impairment resulting from the injury as provided in this paragraph and is terminated from employment by that employer, the award or agreement for settlement for benefits under this chapter shall be reviewed upon commencement of reopening proceedings by the employee for a determination of any reduction in the employee's earning capacity caused by the employee's permanent partial disability.

Iowa Code § 85.34(2)(v) (numerical designations identified in bolded brackets added).

In Den Hartog Industries v. Dungan, the Iowa Supreme Court reversed the Commissioner’s finding (which was affirmed by the District Court and Iowa Court of Appeals in a 2-1 split decision) that Claimant Dungan was entitled to an award of industrial disability under Iowa Code § 85.34(2)(v), based on earning capacity rather than functional impairment. In applying section 85.34(2)(v) in a straightforward manner, the Court stated:

Under sentences 1 and 2, Dungan’s back injury would ordinarily be compensated according to the industrial method, based on “the reduction in the employee’s earning capacity caused by the disability.” Iowa Code § 85.34(2)(v). However, Dungan “return[ed] to work . . . for which [he] receive[d] or would receive the same or greater salary, wages, or earnings than [he] received at the time of the injury.” Id. Therefore, under sentence 3, he should be compensated “based only upon [his] functional impairment resulting from the injury, and not in relation to [his] earning capacity.” Id. Finally, Dungan was not “terminated from employment” by Den Hartog, so sentence 4 doesn’t apply, and there is no review-reopening. Id. In other words, when all is said and done, Dungan should be compensated based on his functional impairment, as dictated by sentence 3, not loss of earning capacity.

Den Hartog Industries v. Dungan, No. 23-1402 at *8, __ N.W.3d __ (Iowa 2025). The Supreme Court then vacated the Court of Appeals Decision, District Court Decision, and remanded the case to the Commissioner with instructions to calculate Claimant Dungan’s entitlement to benefits based on his functional impairment. Dungan, No. 23-1402 at *12, __ N.W.3d __ (Iowa 2025).

Senate Bill 258 was signed in May 2025. According to the bill itself:

This bill provides that the maximum amount that the industrial insurer or Administrator may recover for such a lien must be the lesser of: (1) the amount of the lien, minus an amount equal to one-half of the reasonable costs incurred by the injured employee or the dependents of the employee in procuring the recovery; or (2) one-third of the total amount of any recovery, inclusive of any attorney’s fees or costs and the monetary value of any other property which is recovered, minus an amount equal to one-half of the reasonable costs incurred by the injured employee or the dependents of the employee in procuring the recovery. This bill requires an itemized memorandum of any such reasonable costs incurred by the injured employee or the dependents of the employee in procuring the recovery to be verified by the injured employee, the dependents of the employee or the attorney or representative of the injured employee or the dependents of the employee, provided to the industrial insurer or Administrator and subject to judicial review under certain circumstances. This bill also limits any offset to the amount of future compensation received by the injured employee or dependents of the employee to: (1) an offset against payments of compensation that are not accident benefits; and (2) a reduction in each such payment which does not exceed one-third of the amount of the payment until the total amount of all such reductions equals the net amount recovered by the injured employee or dependents of the employee.

Senate Bill 317 was signed in July 2025. According to the bill itself, it is:

revising certain requirements for an insurer or third-party administrator to maintain a physical office in this State; revising the circumstances under which the Administrator of the Division of Industrial Relations of the Department of Business and Industry may conduct certain inspections; revising provisions relating to the administration of certain claims; revising provisions relating to the calculation of certain premium costs; revising provisions relating to certain administrators; revising provisions relating to certain audits; revising provisions relating to certain subsequent injury accounts; authorizing the Administrator to adopt regulations relating to physician assistants; requiring the Administrator to adopt a certain formulary; revising provisions relating to an insurer's list of certain physicians and chiropractic physicians; establishing and revising various requirements for certain hearings relating to industrial insurance claims; revising provisions governing an injury or disease that is caused by stress; revising provisions governing motions to stay certain decisions and petitions for judicial review; revising requirements for payments for a period of temporary partial disability; revising the circumstances under which the Administrator may impose certain administrative fines; repealing provisions governing certain appeals and certain determinations of a percentage of disability; and providing other matters properly relating thereto.

I.                  

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701 Market Street, Suite 340, St. Louis, MO  63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2025 – September 2025

Claimant’s Death in One Car Accident Compensable as No Evidence Accident Caused by Texting/Use of Phone

Brazel vs. RTS Waste Services, Injury No. 22-065738

FACTS: The claimant was driving a waste collection truck for the employer, and the vehicle ran off the side of the roadway and the claimant overcorrected. The truck came to rest on its side and the claimant was ejected from the vehicle and died at the scene. At the scene, the surviving passenger, Mr. Ballanger, told the trooper that the claimant veered off the side of the road and overcorrected.

Mr. Ballanger was deposed at which time he testified that he was texting when the truck went off the road and only then did he look over at the claimant and saw his left hand on the steering wheel and his right hand on the phone. He did testify that the claimant was texting as he saw his thumb moving. He did not know if the claimant was on his cellphone immediately before the truck went into the grass and did not see the screen of the cell phone.

The employer denied the case, alleging that the claimant was texting on the phone at the time of the accident and therefore the risk source causing the injuries was texting while driving which led to the accident. The employer also appeared to argue that the claimant was equally exposed to this hazard and risk in his non-employment life.  

HOLDING: The judge noted that the important question in this case was who had the burden to prove the claimant was texting at the time of the accident and he noted that it was actually the employer as asserting any claim or defense based on a factual proposition the party asserting such claim or defense must establish that the proposition is more likely true than not. The judge noted that Mr. Ballanger testified that he himself was on his phone and did not look up until the truck had left the roadway and therefore, he was unable to testify as to what the claimant was doing at the time the truck left the roadway. He also noted that the first time that Mr. Ballanger stated that the claimant was texting was 18 months after his accident at the time of his deposition. There was testimony that the employer did not have any phone or seatbelt policy. Therefore, the judge noted that the claimant was not violating any employer policy, assuming he was texting at the time of the accident. He noted that the employer’s position requires a finding that the claimant texting, or use of the phone was not work related and the employer produced no evidence on that issue. He noted that even if he was using his phone there was no evidence that his use of the phone caused the accident. The judge concluded that the employer did not show by a preponderance of the evidence that the claimant was texting at the time of the accident and at the time the truck left the roadway. He found that the claimant met her burden of proof in that the claimant’s death was caused by an accident arising out of and in the course of the employment. The claimant was driving the employer’s truck, on duty, and was not engaged in any activity prohibited by the employer.

The Commission affirmed with a supplemental decision noting that the risk source in this case was driving the employer’s trash truck on a two-lane rural highway and that was related to the claimant’s employment with the employer, and the claimant was not equally exposed to that risk source his non-employment life.

Claimant Awarded PPD Not PTD Because Claimant’s Report of Physical Activity Inconsistent With Surveillance

Byers vs. New Prime Inc., Case No. SD38916 (Mo. App. SD 2025)

FACTS: The claimant was a truck driver who sustained an injury operating a trailer jack and alleged that he was permanently and totally disabled. The Commission determined that the claimant was not PTD as they did not find him a credible witness in light of video surveillance which showed the claimant engaging in various activities that he said he could no longer engage in due to ongoing pain and depression. He also told his medical and vocational experts that he had limitations which were inconsistent with the video surveillance. Therefore, the Commission found his experts’ opinions regarding the claimant’s disability unpersuasive. The claimant appealed contending there was not sufficient competent evidence to support the Award in that the overwhelming weight of the evidence proved that he was PTD as a result of the work accident.

HOLDING: The Court noted that an Award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. The Court notes that substantial does not denote quantity or even quality but simply means probative evidence. The claimant essentially argued that his opinions were more credible as his experts were more qualified. The Court noted that the decisions by the Commission as to competing medical opinions lie within its sole discretion and are not subject to Appellate review.

The claimant also argued that the surveillance videos do not support its finding of PPD and argued that the videos merely show him walking, talking, standing, and shopping, but there are no videos of him working, carrying, or lifting heavy objects or engaging in sports and therefore there is nothing in the videos proving his ability to work. The Court noted the argument is misguided because the claimant appears to suggest that the employer had the burden of proving the claimant was not entitled to PTD benefits. However, it is the claimant who bears the burden of proof. The Court noted that the surveillance videos rebutted the claimant’s allegations of what he could and could not do. Therefore, the Court affirmed the Commission’s Award of PPD benefits.

Claimant PTD as a Result of Last Injury Alone Despite Pre-Existing Blindness

Easley vs. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. ED113451 (Mo. App. ED 2025)

FACTS: In 1988 the claimant sustained a gunshot wound to his face which severed his optic nerve resulting in total blindness. He underwent rehabilitation and began working on an assembly line. On the date of injury, the claimant’s foot was run over by a forklift sustaining fractures and resulted in CRPS. The claimant was then diagnosed with left ankle instability, the doctor recommended an ankle brace for daily use and limited the claimant to 4-hour work days and placed him at MMI. He continued to work light duty and was laid off in October 2021. He returned to work in February 2022 and worked in an accommodated position until February 2023. He also was diagnosed with anxiety and depression as a result of the work injury. He was seen by Dr. Sky who assessed 30% disability. Dr. Lantsberger, who the claimant treated with on behalf of the employer, placed the claimant at MMI and assessed 20% disability. Dr. Volarich assessed 40% of the left great toe and 45% of the left lower extremity.

Mr. Hughes opined that the claimant was PTD based on his primary injury alongside his visual impairment. However, he noted that if Dr. Sky was found credible, his PTD would be based on the last injury alone. Dr. Volarich reviewed Mr. Hughes’ report and concurred that the claimant was PTD as a result of a combination of his work injury and his blindness. The claimant settlement his claim against the employer for 50% of the left ankle and 25% of the body referable to psych. The claimant proceeded to a Hearing against the Fund for PTD benefits. The ALJ denied benefits noting that he did not establish that his preexisting blindness was at least 50 weeks as he did not offer any rating. The ALJ also concluded that the claimant was PTD as a result of the last injury alone. The claimant appealed and the Commission affirmed.

HOLDING: The Court noted that if the last injury in and of itself renders the claimant permanently and totally disabled then the Fund has no liability, and the employer is responsible for the entire amount of compensation. Therefore, until the degree of disability from the last injury is established, Fund liability cannot be determined. The Court noted the Commission in this case was presented with conflicting testimony and made credibility determinations. The Commission found that based on the claimant’s own testimony, he was permanently and totally disabled as result of the last injury alone as he stated he has no physical problems prior to working before the accident. Therefore, the Court upheld the Commission’s decision that the claimant is permanently and totally disabled as a result of the last injury alone and therefore, the Fund was not liable for PTD benefits.

Claim Denied as No Contemporaneous Medical Evidence Despite Multiple Treatment Records After Date of Injury Available With No Mention of Work Injury

Volger vs. Mick Mehler & Sons, Inc., Injury No. 23-062420

FACTS: A Hardship Hearing was held wherein the claimant alleged an injury to his low back. Dr. Lee testified on behalf of the claimant and believed that the claimant’s condition was related back to the work accident. Dr. Bernardi did not believe that the claimant’s condition was related back to the work accident. The ALJ believed that the claimant’s condition was work related and that the employer was responsible for additional treatment. The employer appealed.

HOLDING: The Commission reversed the Award and decision of the ALJ. The Commission found there was no credible or persuasive evidence of contemporaneous medical documentation of a work injury on August 18, 2023. The first reference was September 25, 2023, over a month after the alleged work accident. However, this was not the earliest record. The Commission found that a work-related injury was inconsistent with medical records relating to his treatment with a chiropractor, Mercy Urgent Care, Mercy Hospital, and Lincoln County Ambulance along with Mercy Hospital St. Louis between August 21, 2023 and August 30, 2023. The Commission noted that when the claimant was seen on August 29, 2023 the history noted was no new injury, trauma, or fall. Also, when he was seen at the emergency room on August 29, 2023, he reported chronic low back pain with onset of subjective weakness and sensation in the right lower extremity yesterday. The Commission further noted that the claimant’s deposition and Hearing testimony included inconsistent accounts regarding his alleged work accident.

The Commission found Dr. Bernardi credible and noted that he stated that the 10-day delay between the employee’s alleged work injury and when he reported leg complaints to urgent care on August 29, 2023 did not support a casual link between the two. The doctor further noted that the protrusion was not acute and that the L5-S1 disc herniation was asymptomatic as a left sided disc herniation would not cause right sided back and leg complaints. Therefore, the Commission concluded that the claimant did not meet his burden of production and persuasion regarding medical causation and therefore, compensation was denied.

Claimant Not Entitled to Past/Future Medical as New IME Not Additional Significant Evidence to Modify Temporary Award

Gilbert vs. City of Grandview, Missouri,  Injury No. 16-057420

FACTS: The claimant worked as a police officer since 2002. He injured his right knee during a foot chase on July 31, 2016. The claimant had previous compensable work-related injuries to his right knee in 2012 and 2013. The claimant treated with Dr. Strong for the 2016 injury as well as the 2012 and 2013 injuries. He underwent an arthroscopy in 2012 and received a settlement for 15.5% of the right knee. While treating for the 2013 injury, Dr. Strong advised him he would likely need a total knee replacement within 10 years and the claimant settled the 2013 injury for 10% of the right knee. In 2013, Dr. Strong performed an arthroscopy, placed the claimant at MMI, and assessed 4% disability. She also believed that the claimant may need further medical care in the future for his underlying degenerative changes in his knee which were not the result of the meniscus tear for which he was diagnosed with in 2016. The claimant returned to the doctor in 2018 and she did not believe that the claimant’s continuing complaints were the result of the 2016 date of injury. The claimant’s attorney obtained a report of Dr. Stuckmeyer who opined that the claimant would need a knee replacement, and it was due to all three of the work injuries, essentially an occupational disease.

The claimant moved forward with a Hardship Hearing and the judge believed that Dr. Strong’s opinion was more credible and denied additional treatment as a result of the 2016 work injury. The claimant then went and treated on his own and underwent a right total knee arthroplasty. The claimant obtained an IME report from Dr. Rosenthal who did believe that the claimant’s knee injury and condition flowed from the 2016 accident. The claimant went to a final Hearing and the ALJ found that Dr. Rosenthal’s report was “additional significant evidence” and sufficient to warrant modifying the Temporary Award and believed that Dr. Rosenthal’s opinions were more credible than those of Dr. Strong. The ALJ concluded that the employer must reimburse the claimant for medical expenses, out of pocket expenses, and future medical treatment along with 30% disability as a result of the 2016 injury. The employer appealed.

HOLDING: The employer alleged that the report of Dr. Rosenthal did not constitute additional significant evidence to modify the Temporary Award. The Commission agreed noting that it was not additional significant evidence to support modification of the Temporary Award as the claimant simply switched IME reports. The Commission did not find the opinion of Dr. Rosenthal to be persuasive or credible.

The employer also argued there was not sufficient, competent, and substantial evidence to support an Award of past medical expenses when treatment was denied and also argued that there was not sufficient competent and substantial evidence to support the Award of future medical treatment and the Commission agreed. The Commission also modified the Award of PPD to 17.5% of the right knee.

Prior Low Back Injury Aggravated and Accelerated Work Injury So Fund Liable for PTD Benefits

Anderson vs. Caravan Trailer, LLC & Treasurer of Missouri as Custodian of Second Injury Fund,  Injury No. 19-058675

FACTS: The claimant sustained an injury to his low back on February 12, 2019 and at a Hearing the ALJ found the claimant had 30% disability referable to the work accident and that the claimant was permanently and totally disabled as a result of the work injury as well as a preexisting low back injury from 2 prior back surgeries. The ALJ found that the evidence clearly showed that the claimant’s preexisting low back impairments significantly aggravated and accelerated the claimant’s disability as a result of the 2019 accident at work as he credited the testimony of Dr. Aks who testified that the claimant’s preexisting scar tissue compounded the claimant’s 2019 work injury. Therefore, the Fund was responsible for benefits. The Fund appealed.

HOLDING: The Fund argued that there was insufficient evidence that the claimant’s preexisting disability directly and significantly aggravated and accelerated the primary injury as Dr. Aks testified that the 2016 low back injury did not aggravate the 2019 work injury. There was no dispute that the claimant was perm total and the Commission declined to disturb the ALJ’s findings. The Commission further noted that Dr. Stuckmeyer’s report, which was made part of the record as an exhibit also stated that if the claimant was unemployable, it was due to his work injury and his preexisting condition which constitutes competent and substantial evidence supporting the ALJ’s Award.  

Dr. Aks testified that the claimant has epidural fibrosis as a result of his prior surgeries and that made him more susceptible to further degeneration of his back as well as being more susceptible to reinjury. He noted that the claimant’s primary injury was the prevailing cause of a large, left sided herniated disc, a new pathology that required additional surgery. After repeated questioning, Dr. Aks did testify on cross examination that the preexisting condition did not aggravate the work injury because it did not really cause it and what caused it was the physical maneuver that he did, herniating the disc. The Fund argued that that testimony supports the argument that the preexisting disability did not aggravate or accelerate the primary injury. However, the Commission disagreed noting that Dr. Aks’ confusion about how to interpret “aggravate” in a medical context does not undermine his opinion that the claimant’s preexisting epidural fibrosis directly and significantly aggravated the disability resulting from the claimant’s large left sided herniated disc, a new pathology caused by his primary injury. Therefore, the Fund was responsible for benefits.  

In a recent case, Steak ‘N Shake, Inc. v. Spears, Florida’s Fifth District Court of Appeal affirmed that employees who sustain alleged injuries in the workplace cannot bypass the workers compensation system to bring a tort claim against their employer. In this case, the injured worker suffered severe emotional distress after a robbery in the workplace where she was held at gunpoint, forced into a backroom, and had her life repeatedly threatened by the gunman. Importantly, although the gunman grabbed the injured worker by her neck and shoulder, she admitted she did not sustain any physical injuries. Florida workers compensation law contains an express limitation on benefits available for mental and nervous injuries. Specifically, Section 440.093(1), Florida Statutes, states:

A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

                The employee chose not to file a workers compensation claim and instead filed a civil tort suit directly against her employer for emotional distress suffered as a result of the robbery. In response, Steak ‘N Shake claimed entitlement to workers compensation immunity, arguing that because the employee failed to request workers compensation benefits, she had not taken the first step to determine whether she sustained compensable injuries during the robbery. At the trial court level, the court sided with the employee and ruled that the tort claim was outside the scope of Florida workers compensation law, as the employee had not sustained any physical injuries, meaning she was “never entitled to workers compensation benefits.”

                On appeal, the Fifth DCA reversed the trial court's decision and held that an employee may not pursue a tort claim against their employer in circuit court without first seeking a determination as to whether they sustained a compensable injury and are entitled to workers compensation benefits. The Fifth DCA highlighted Section 440.13(1)(d), Florida Statutes, which defines “compensable” to mean “a determination by a carrier or judge of compensation claims that a condition suffered by an employee results from an injury arising out of and in the course of employment.” In other words, only insurance carriers and workers compensation judges—not circuit court judges or injured employees themselves—have the authority to determine compensability. Because the injured worker chose to file in circuit court rather than file a workers compensation claim, no carrier or judge of compensation claims had made a determination as to whether her injuries were compensable. Neither the injured worker herself nor the trial court judge had the authority to make this determination, and the trial court order allowing the tort case to proceed against the employer was vacated and remanded.

                What this means for Florida employers is that employees must first seek workers’ compensation benefits before filing a civil tort suit against their employer. They cannot make a compensability determination on their own or seek to have a circuit court judge do it for them. This is true even in cases of purely emotional or mental injuries, which generally are not compensable under Florida law. In Spears, or in a similar case where the facts would play to jurors’ emotions and could result in an excessive jury verdict, this gives employers options for deciding how to handle these difficult claims. 

DOWC HB25-1300 Workers' Compensation Benefits Proof of Entitlement

Recent legislation, HB25-1300, known as "Workers' Compensation Benefits Proof of Entitlement," goes into effect on January 1, 2028. In preparation, the Governor tasked the DOWC with collaborating with stakeholders to determine the best policies and tools for implementation.

The DOWC is holding multiple 90 minute listening sessions on Zoom to discuss important topics and hear from stakeholders. You must register ahead of time.

Session 2: October 22 at 4:00 p.m. MT

This session will discuss updates on the DOWC provider directory and identify the types of providers that can be designated. It will also examine the accreditation process for providers, including how the DOWC monitors their licenses and malpractice status.

This session will address the implications of the premium credit referenced in the Division of Insurance's Amended Regulation 5-1-11 Section 5(E). It will also review timelines related to designating and changing physicians to ensure that workers receive timely care. Session 3 will conclude with an open discussion on effective strategies to reduce costs for all parties.

How Does the Colorado Workers’ Compensation Indemnity Cap Compare to the Civil Action Caps?

The Colorado workers’ compensation indemnity benefit cap for a date of injury on or after July 1, 2025 is $192,996.79 for whole person impairment that is 19% or less, and $312,967.77 for whole person impairment that is 20% or more.  This is a considerable increase of almost $100,000 from four years ago, when the cap was $106,911.08 for 19% or less and $213,819.45 for 20% or more.  The indemnity cap does not include non-indemnity expenses, such as medical benefits and mileage reimbursement. 

In contrast, the Colorado statutory cap on noneconomic damages in civil actions filed on or after January 1, 2025 is $1.5 million ($2.125 for wrongful death actions).  Thus, while the cost of workers’ compensation claims have increased, employers still benefit from the protection from civil liability offered by the exclusive remedy of the Colorado Workers’ Compensation Act.

Indiana Court of Appeals Upholds

Indiana W.C. Board On Issue of

Work vs. Personal Risk

In a surprising Memorandum (not precedential) decision, the Indiana Court of Appeals detailed a seldom-addressed work risk vs. personal risk issue.

In Harold E. Smoot v. Lowe’s, 25-A-EX-929, the court found the Indiana Worker’s Compensation Board, in finding plaintiff’s fall from a stool he was sitting on while working with a resulting femur fracture, was caused solely as the result of his diabetes, low blood sugar, and personal decision not to avail himself of his allowed breaks to eat as needed, was correct in that plaintiff meet his burden to support a finding otherwise.

The claim was found not compensable by both the single hearing member and, in review, by the full board.  The court, affirming, discussed risks incidental to the employment and the question of whether Smoot’s risk of injury was personal to him.  It examined the evidence including plaintiff’s health condition, the employer’s accommodations to him allowing him to take breaks when needed, eat candy or snacks at the register while working to adjust his blood levels, and providing him a chair or stool to sit on while working as a cashier.  Despite these accommodations, plaintiff failed use them and make the necessary adjustments to his day to prevent low blood sugar and resulting weakness, causing him to stumble and fall resulting in his injury, a purely personal risk.

The Legislature made no statutory changes to the Workers’ Compensation Act in 2025.  Georgia’s maximum TTD rate remains at $800.00 and maximum TPD rate at $533.00. Additionally, the Georgia Court of Appeals and Supreme Court continue the trend of accepting very few workers’ compensation appeals. Most recently, in McKay v. Inalfa Roof Systems, Inc., 374 Ga. App. 526 (2025), the Court of Appeals addressed the longstanding Rycroft defense. Under Rycroft, an employee’s misrepresentation as to a pre-existing condition will bar benefits if: (a) the employee knowingly and willfully made a false representation as to his/her physical condition; (b) the employer relied upon the false representation as a substantial factor in the hiring process; and (c) there is a causal connection between the false representation and the injury. In McKay, the employee failed to disclose his history of back surgery in a post-offer medical questionnaire. He injured his back at work and disclosed his history after this first accident. The employee continued to work after the disclosure and suffered a second accident involving his back months later. The Court of Appeals confirmed Rycroft applied to bar his first accident. However, the Court of Appeals found the Employer waived its right to assert Rycroft in retaining the claimant after his disclosure thus rendering the second accident compensable. McKay raises the bar for Employers and mandates action to preserve Rycroft once a disclosure is made.