State News

NWCDN State News – West Virginia

Charity Lawrence and Dill Battle, Spilman Thomas & Battle, PLLC

February 11, 2026

Upcoming Conferences

The West Virginia Workers’ Compensation Association is hosting its annual conference on April 30, 2026, in Charleston, West Virginia. A featured program will discuss E-Mods and understanding claim and program costs to discuss how a comprehensive workers’ compensation program can impact your E-mod and premium costs from claim avoidance, safety measures and claim management. Another featured speaker is Dr. Chris Martin to debate whether the Rule 20 treatment guidelines are still a valid, including his position on the importance of treatment guidelines to the workers’ compensation system in West Virginia to maintain and keep medical costs low and to help manage a workers’ compensation claim. West Virginia Insurance Commissioner Allan L. McVey will discuss the Insurance Market in West Virginia, and West Virginia State Treasurer Larry Pack will discuss the financial impact of a stable workers’ compensation market to our State’s financial health. More information can be found under the Meetings drop down menu of the WVWCA website: www.wvwca.net

West Virginia Legislature – 2026 Regular Session

As of February 11, 2026, there are several bills of note related to workers’ compensation submitted in the 2026 Regular Session of the West Virginia Legislature. The West Virginia Workers’ Compensation Association and other business advocacy groups are following several bills related to occupational pneumoconiosis law in West Virginia.

Senate Bill 895 is concerning because it removes the statute of limitations for certain occupational pneumoconiosis (OP) claims and allows unlimited reopening of old claims. It was introduced on February 10, 2026, by Senator Takubo, Senator Smith (Senate President) and others, and was referred to the Judiciary Committee. This bill is similar to bills that have been introduced unsuccessfully for several years. The bill relates to progressive massive fibrosis (PMF) -- the most severe form of coal workers’ pneumoconiosis. The bill removes all time limits for filing or reopening PMF claims. A new section (§23‑4‑8e) allows miners with evidence of PMF to file initial claims or reopen old claims at any time, with no statute of limitations. The bill establishes PMF as a distinct, more severe condition by explicitly recognizing PMF as more serious than simple pneumoconiosis and defines it using radiographic criteria (large opacities >1 cm). The bill creates a mandatory impairment rating where a PMF diagnosis is automatically considered a 15% permanent partial disability under §23‑4‑6(i). This is a fixed statutory award. Finally, the bill allows unlimited reopening of PMF claims. Because PMF is a progressive disease, the bill ties PMF to the “progressive disease” category, which already allows repeated reopening petitions. Senate Bill 895 expands this by eliminating time limits entirely.

Senate Bill 904 was introduced by Senator Azinger on February 10, 2026, and proposes significant changes to Articles 4 and 5 of Chapter 23. It has been single-referred to the Committee on Banking and Insurance to which Senator Azinger is the chair, so it will move. It is similar to a “clean up” bill that passed several years ago and that was drafted by OIC General Counsel Erin Hunter to remove outdated language from the Code before privatization in 2005 and when the duties of the Office of Judges was replaced by the Workers’ Compensation Board of Review. The bill’s introduction language suggests it is a comprehensive modernization of West Virginia’s workers’ compensation statute and updates, reorganizes, and repeals numerous provisions across Articles 4 and 5 of Chapter 23. The bill’s goals are administrative clarity, consistency, and alignment with post‑2005 reforms. The West Virginia Workers’ Compensation Association and other organizations will analyze its language to prevent unintended consequences.

House Bill 4589 expands time limitations for evaluation before the Occupational Pneumoconiosis Board, and expands indefinitely the current three-year statute of limitations. The bill essentially provides an unlimited time for an employee to file an occupational pneumoconiosis claim and obtain an evaluation at the OP Board, circumventing the current three-year statute of limitations. House Bill 4589 was discussed at a hearing on January 22, 2026, in the Committee on Health and Human Resources. Commissioner McVey testified before the committee hearing and discussed the financial impact of the bill on the operating budget of the OIC, the operating budget of the OP Board, and the solvency of the Old Fund. Calculating insurance reserve information for uncertain claims will be impossible and will increase the cost of obtaining workers’ compensation insurance for all businesses. The bill is problematic to the insurance industry and employers in West Virginia because it will increase the expenses of the Operating Fund of the OIC, will likely adversely affect the efficiency of the OP Board, and will likely increase the cost of obtaining affordable workers’ compensation insurance for businesses in West Virginia. The long-term impact of the bill will be a challenge to the low cost of workers’ compensation insurance for all employers in the state.

Senate Bill 110 creates a West Virginia Black Lung Program that grants pain and suffering for occupational pneumoconiosis. There is already a robust West Virginia Black Lung Program long in existence. Occupational pneumoconiosis is evaluated and compensated under existing state law with generous benefits and medical treatment for qualifying West Virginia employees afflicted with occupational pneumoconiosis. Benefits are already tax-free and not reportable as income to the State or IRS. An additional black lung benefit that has provided over $30 million in direct benefits to West Virginians just in FY2025 is the Federal Black Lung program. All claims for federal black lung benefits are presumed to be filed timely and there is no statute of limitations for filing survivor claims. Monthly benefits are based on the number of dependents as well as generous medical coverage, also all tax-free and not reported as income. The proposed Senate Bill 110 will fund a third, unnecessary State Black Lung scheme through taxes on coal, wind, solar, and other renewables. West Virginia taxpayers are already struggling, asking them to bear the burden of higher energy rates is unnecessary and harmful. The proposed Senate Bill 110 also instructs that a portion of the federal coal excise tax that funds the already-beleaguered Black Lung Disability Trust Fund be redirected to create this redundant program, which would be opposed federally and would further exacerbate this already fiscally problematic Fund’s financial issues. There is no residency requirement for the receipt of pain and suffering benefits under the proposed Senate Bill 110, so West Virginia taxpayers would be subsidizing benefits to countless nonresidents. It is also potentially retroactive, as there is no beginning date specified.

Occupational pneumoconiosis can be a devastating diagnosis to individuals and families. There are two robust, longstanding programs available to afflicted employees and their survivors that provide benefits. Senate Bill 110 is redundant, fiscally irresponsible, and creates a burden on West Virginia taxpayers to provide benefits to out of state residents.

House Bill 4589 is currently in the House Committee on Health and Human Resources. Senate Bill 110 has been referred to the Committee of the Judiciary and then to the Committee on Finance but has not been scheduled on the agenda for either committee.

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals of West Virginia welcomes a new justice in the first term of 2026. Justice Gerald M. Titus III was appointed on Nov. 21, 2025, by Gov. Patrick Morrisey to fill the seat vacated by Justice Tim Armstead, who passed away in August. Justice Titus was officially sworn in to office during a private ceremony on Dec. 12 in order to begin work ahead of the Court’s spring term. Prior to joining the Court, Justice Titus was a member of Spilman, Thomas & Battle, where he maintained a general litigation practice, including complex business disputes, commercial transportation claims, eminent domain proceedings, environmental matters, criminal investigations and prosecutions, and dispute resolution.

At the beginning of the Spring Term of Court in 2026, the Court has not issued any signed opinions. As of the date of this memo, the Court has issued six memorandum decisions related to workers’ compensation cases.

Georgian American Alloys, Inc. v. Mark Davis, No. 25-579 (W.Va. Supreme Court, January 13, 2026) (memorandum decision). The Court affirmed the June 27, 2025, memorandum decision of the Intermediate Court of Appeals (“ICA”). See Georgian American Alloys, Inc. v. Davis, No. 25-ICA-49, 2025 WL 1779770 (W. Va. Ct. App. Jun. 27, 2025) (memorandum decision). The ICA affirmed the January 2, 2025, order of the Workers’ Compensation Board of Review reversing the May 23, 2023, claim administrator’s order granting Mr. Davis a 10% permanent partial disability award (“PPD”). The Board of Review granted an additional 5% PPD award for a total award of 15% PPD, which the ICA affirmed. The Court rejected the employer’s argument that the ICA erred in failing to apportion the claimant’s preexisting impairment when it affirmed the Board of Review’s decision to grant an additional 5% PPD award. The employer asserted that the facts of this case and the evidence of record clearly establish that the claimant has no permanent impairment due to the compensable condition in the claim, which is broken ribs, and that the evidence relied on by the Board was a 15% impairment rating for a noncompensable neurological condition. The employer argued the evidence presented by a Board-certified pulmonologist demonstrated the claimant’s breathing abnormality was the result of his prior smoking habit and not related to the injury. As such, the employer argued that the medical evidence clearly established that the claimant had a definite ascertainable preexisting impairment which should have been deducted from the total impairment rating. Furthermore, the employer contends that the exclusion of the pulmonologist’s report simply because he used a pulmonary criteria to rate the claimant’s pulmonary impairment instead of neurological impairment is improper. The Board of Review found that the pulmonologist’s report included opinions of the claimant’s impairment that were not supported by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed. 1993). As a result, his report was found to be unreliable with regard to the claimant’s permanent impairment, and his opinion concerning the alleged preexisting condition was found to be without additional medical support. Thus, the ICA and the Board of Review correctly determined that apportionment was not proper because the pulmonologist’s recommendation of 5% whole-person impairment for pulmonary function was not a valid and reliable rating. The Court reviews questions of law de novo, and accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, the Court found no reversible error and therefore summarily affirmed. See W. Va. R. App. P. 21(c).

Intermediate Court of Appeals of West Virginia

In the Spring Term of Court in 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued thirteen memorandum decisions related to workers’ compensation cases.

Alliance Coal, LLC v. Ashley Carte, No. 25-ICA-284, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision). Alliance appealed the June 10, 2025, order of the Workers’ Compensation Board of Review (“Board”), which reversed two claim administrator’s orders and granted Carte a 12% permanent partial disability (“PPD”) award. On May 17, 2022, Carte was employed by Alliance as an underground fire boss in a coal mine when he injured the bicep/forearm of his left arm while he was repositioning roof straps. The appeal involves the proper interpretation of the AMA Guides Fourth Edition and the Board’s weighing of the evidence of different methods of calculating whole person impairment when using grip strength loss measurements. The ICA was persuaded by the Board’s determination that both Mr. Carte’s statements to Dr. Guberman regarding his loss of grip strength and Dr. Guberman’s evidence showing significant loss of grip strength between the left and right hands were more persuasive measurements of whole person impairment, and Alliance failed to rebut these findings. As the Board noted, the Guides allow the use of grip strength as the basis for an impairment rating in rare cases, and Dr. Guberman concluded that this was such a case. Thus, the ICA found no error in the Board’s determination that Dr. Guberman’s application of loss of grip strength pursuant to the Guides was appropriate in this case. The ICA applied a deferential standard of review and affirmed the Board of Review:

As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude that the Board was clearly wrong in finding Mr. Carte sustained a 12% WPI from loss of grip strength due to the compensable injury.

Alliance Coal, LLC v. Ashley Carte, at p. 4.

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

Arizona implemented several Workers’ Compensation rules that took effect on December 6, 2025. This change includes Article 1, 2, 3, and 7 that have now been reorganized by divisions administering the rules (Article 1 – Claims Division; Article 2 – Administrative Law Judge Division; Article 3 – Commission Rules; Article 7 – Legal Division). The definition of “Claimant” has been updated under R20-5-102 to “any person who is entitled to apply for benefits under the Act.” The process of service via email between parties with their consent is now included in R20-5-214. New rules under Article 7 have been drafted to incorporate the established workers’ compensation fraud unit. Several other changes have been made including the repeal of R20-5-133, R20-5-134, R20-5-135 and R20-5-147 that became unnecessary. The full list of rule changes can be found on the Industrial Commission of Arizona website.

On February 11, 2026, the Industrial Commission of Arizona announced that a new and improved 108 Wage Form will be released soon.

By Jenny Green, Ritsema Law 

For employers and their workers compensation insurance carriers, the denial of a claim for permanent total disability (PTD) benefits prompts a major sigh of relief. However, it’s important to manage expectations by keeping in mind that a claimant may be allowed to relitigate the issue of whether they’re entitled to PTD benefits if the claimant proves that their physical condition has changed since their initial claim for PTD was denied.

This issue was considered in MHM Support Servs. v. Miller, 2025 Ark. App. 546, where Claimant Tammy Miller filed a claim alleging permanent and total disability due to compensable injuries she sustained in January 2016 despite a previous ruling denying that Miller was entitled to PTD benefits as a result of her compensable injuries. Respondents argued that the issue had already been decided and could not be adjudicated for a second time based on the legal doctrine known as res judicata which bars relitigation of a judicial or administrative determination unless there is a change following the Order. However, the presiding Administrative Law Judge, Full Commission, and Court of Appeals disagreed with Respondents, finding that Miller’s second claim for PTD benefits was not barred by res judicata because she proved that her physical condition had changed after the Commission made its first ruling denying PTD benefits in August 2021.

In an Opinion filed on November 12, 2025, the Arkansas Court of Appeals affirmed the ALJ’s and Full Commission’s award of PTD benefits reasoning that she presented objective evidence supporting several new conditions and injuries that she was diagnosed with after her first claim for PTD benefits was denied in August of 2021. The Court of Appeals also relied heavily on the ruling made by an ALJ in June of 2022 finding that Miller had entered into a second healing period a few months after her first PTD claim was denied when she began to suffer complications from the surgery she previously had to repair her compensable hip injury including a partial torn tendon and pelvic floor dysfunction that her surgeon attributed to the hip injury. Given that Respondents did not appeal the ALJ’s Opinion awarding Miller TTD benefits for her second healing period, the Court found no merit in Respondents’ argument that Miller had failed to establish a change in her condition sufficient to warrant a second adjudication for PTD benefits, and instead considered the ALJ’s Opinion to be clear evidence that Miller’s physical condition had changed following the Commission’s initial PTD determination. 

The WCA will be implementing amendments to Parts 4 and 7 of the WCA rules effective April 7, 2026. Redline versions of the proposed changes are available on the WCA website.

Proposed changes to Part 4. More specifically, Rule 11.4.4.15 regarding approval of attorney fees. The change adds criteria or factors to list on contested attorney fee applications or petitions seeking attorney fees in excess of the statutory cap. The factors include the time and effort expended by the attorney, the extent to which issues in the case were contested, ability, skill and experience of the attorney, relative success of the outcome, etc. The list is not meant to be exhaustive as the final factor listed is “any other relevant information for the determination of the attorney fee award in question.”

Proposed changes to Part 7. More specifically, Part 11.4.7.12 regarding payment for health care services and case management. The change eliminates the requirement that a case management contractor give reasonable notice and an opportunity to the worker or worker’s attorney to be present during or to participate in, any and all contact by the case management with a provider.

© Copyright 2026 by Craig Campos Ritsema Law, LLC. All rights reserved. Reprinted with permission. 

The Division has issued a few important updates recently. On October 24, 2025, the Division relocated to 707 17^th St., Suite 2300, Denver, CO 80202-3404. As part of the move, the Division has updated its external documents and webpages to reflect the new address. There has also been a change regarding the Electronic Data Interchange (EDI) transition. Starting July 9, 2026, carriers and third-party administrators (TPAs) can submit claims using the EDI 3.1 format. July 8, 2026, is the last day to submit EDI data with EDI 1.0 standards. Also, effective January 1, 2026, mileage has been updated from 0.60 to 0.63, and Rules 16 and 18 have been updated.

In 2015, Claimant sustained a thoracic spine injury while employed for Belvedere Fire Company. He was compensated for thoracic spine permanency. He voluntarily closed the claim by global commutation in 2018. In 2023, while working for the City of Wilmington, climbing stairs with a pack of gear during a call, he felt pain in his thoracic spine area, missed several weeks from work, and received conservative care to the thoracic spine area. Claimant filed a Petition seeking acknowledgement of the 2023 injury, relying on the opinion of claimant’s family physician. Employer denied the claim based upon the factual circumstances of the event, and medical opinion of Dr. Samuel Matz. Board Hearing was held. The Board issued a Decision accepting Employer’s position that the successive workers’ compensation carrier standard set forth in Nally v. Standard Distributing, 630 A.2d 640 (Del. 1993), applied, denying the Petition, as claimant failed to satisfy that there was both (1) an untoward event, that (2) was the proximate cause of a new injury. 

Claimant appealed to the Superior Court, arguing Nally does not apply when the first work injury claim is resolved by global commutation, and in the alternative, asserting that if Nally applies, the Board applied it incorrectly. The Superior Court rejected both arguments.

Claimant appealed to the Delaware Supreme Court. On 12/4/25, the Court issued a Decision affirming the Board’s ruling. The Court was clear that Nally assigns liability between successive insurance carriers in cases where an employee seeks compensation for a work-related injury that is causally related to an injury compensated by a previous employer or carrier. In order to shift liability, Nally requires an (1) untoward event and (2) new injury. The question of whether Nally was correctly applied was not a close one. As Dr. Matz testified, the injury was to the same area of the spine, and diagnoses very similar. The nuance of claimant’s first claim being commuted does not mean that the Board applied the wrong standard. The fact that there was no record evidence of symptoms for several years pre-2023 injury also did not change the standard, especially considering claimant’s acceptance of compensation for a permanent injury associated with the 2015 claim, which presupposes that the injury had not healed.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Corey Ferrell v. City of Wilmington, No. 152, 2025 (Del. Dec. 4, 2025). 

The Oklahoma Supreme Court found recently there is no limit on the number of Form A's that an injured worker can be granted to change the treating physician, as long as the Administrative Law Judge agrees.

In the case of St. Anthony v. Goodwin, 2026 OK 3, the Court examined 85A O.S. Sec. 56(B) which the insurance carrier argued allowed only one Form A per case. The ALJ ordered a second Form A. That was appealed, and the ALJ's decision was reversed 2-1 by the Court of Civil Appeals. The Supreme Court granted certiorari and reversed COCA.

Justice Kane, writing for the 6-2 majority, said the statute does not say what happens after the ALJ grants the first automatic Form A. The Supreme Court said it should be up to the ALJ to determine if further changes of the treating physician for different body parts are warranted.  Justice Kane wrote:

   "The statute does not limit the number of applications that may be filed, the number of changes that may be ordered per claim, or the number of changes per injured body part. Nor does the statute require the ALJ to order one change per body part."

Bottomline, the ALJ and the Commission shall make the judgment call on changes in the treating physician based upon the facts in each individual case.  The case grants the ALJ a lot of discretion regarding the treating physician on a claim.

Death investigation professionals aka last responders must have a powerful lobby.  DWC adopted rule amendments that take effect January 29, 2026 to implement Texas Labor Code Section 504.057 which requires expedited medical benefits and accelerated medical dispute resolution for claims for medical benefits by a “death investigation professional” who sustains a serious bodily injury in the course and scope of employment, and requires that the death investigation professional inform DWC and the independent review organization that a contested case hearing or appeal involves a death investigation professional. 
 
When the legislature enacts laws that provide preferential treatment for such a narrowly defined class of injured workers, it can cause more problems than it solves with increased regulatory complexity, among other things.  We recommend doing a study in a year or two to see how many times these new “last responder” rules are invoked.  Let us know your prediction!       
 

Copyright 2026, Stone Loughlin & Swanson, LLP 

DWC announced that its 2026 initiatives include online medical fee dispute submissions, remote interpreters for CCHs, a pilot program to explore the use of AI-based interpretation tools, and use of AI for a customer service knowledge base.
 
If you haven’t spotted the trend yet, the watchword here is “AI,” the use of which is gradually encroaching on the practice of law, as it is in so many other fields.  For all AI’s benefits, there is reason to worry about his increasing presence.
 
AI has the capacity to invent facts and create information that does not exist to support its response and/or to appease the perceived bias of the user. One well-known example is of a lawyer who sued Colombian airline Avianca several years ago, alleging that a food and beverage cart injured his client’s knee while he was onboard a flight. The lawyer submitted a brief using ChatGPT to do his legal research, but the AI tool invented case law entitled Martinez v Delta Air Lines, Zicherman v Korean Air Lines, and Varghese v China Southern Airlines. When Avianca’s attorneys informed the judge that they could not locate the cases cited, the plaintiff’s lawyer had to ‘fess up and admit he had used ChatGPT. He said he asked ChatGPT to cite its sources and AI responded that the cases could be located in the Westlaw and LexisNexis databases. The judge ultimately sanctioned the lawyer and his law firm.

Likewise, our firm has received communications from opposing attorneys who have relied extensively on AI programs to generate their correspondence, a great deal of which proved to be incorrect.  Citations to the Texas Labor Code and Texas Administrative Code are often out-of-date, or otherwise non-existent.  Case law and Appeals Panel Decisions have similarly been misinterpreted and misquoted.  It has been our experience that checking and correcting AI-generated documents often offsets the supposed time saved in relying on it in the first place.

AI as a tool for collating data remains in its infancy, and as with any infant, it requires constant supervision.  While there are benefits to its use, there are substantial risks, too, and for that reason it is the policy of this firm not to rely on it in any capacity.

Copyright 2026, Stone Loughlin & Swanson, LLP

At the DWC Quarterly Stakeholder Meeting held on January 21, 2026, the DWC reported on their 2025 accomplishments and their plans for 2026.
 
Online Tools
 
New online tools introduced by the DWC over the last year include: 

• A nifty benefit estimator tool that even includes a calculator for estimating the average weekly wage when there are multiple employers: Benefits Estimator
• An E-File online reporting tool for non-subscribers - Employer E-File - where employers can report workplace injuries, illnesses, and deaths. The too also allows non-subscribers to file, save, and manage annual notices online.  
• A searchable database for all kinds of interesting claims data collected by DWC:

Copyright 2026, Stone Loughlin & Swanson, LLP