State News

In Arneson v. GR Mgmt., LLC, 2024 S.D. 61, 13 N.W.3d 206, the claimant, Mr. Michael Arneson (“Arneson”), worked as a maintenance manager at a hotel and casino in Deadwood, South Dakota. On July 18, 2018, Arneson was working on a commercial exhaust fan for his employer (Employer”) when the fan shorted and sent 440 volts of electricity through Arneson’s hand, which exited through his foot (“the Work Injury”).

Arneson went to the emergency room for treatment. Within the next few days, he began suffering from mild heart palpitations. Almost two weeks later, Arneson went to the hospital for his heart palpitations and was diagnosed with hyperthyroidism and Atrial Fibrillation (“AFib”).

Arneson then brought a petition for workers’ compensation benefits arguing that the Work Injury caused his AFib and that he was permanently and totally disabled.

Arneson’s treating doctor, Dr. Holloway, provided an expert opinion that Arneson’s AFib was likely caused by his hyperthyroidism and the Work Injury. Dr. Holloway acknowledged that Arneson’s hyperthyroidism could cause AFib itself. However, he also opined that electrical shocks like the Work Injury can cause heart arrythmias, such as AFib. Dr. Holloway did not provide an opinion on how commonly hyperthyroidism causes AFib or how commonly electrical injuries, like the Work Injury, cause AFib. He simply stated he believed both hyperthyroidism and the Work Injury causally contributed to Arneson’s AFib.

Employer countered by providing testimony from two non-treating experts. First, Employer presented the testimony of a cardiologist, Dr. Brody. Dr. Brody stated that he has rarely treated electrical injuries and that electric shock-induced AFib is extremely rare, occurring in less than 1% of cases based on his review of medical literature. In contrast, Dr. Brody testified that “the association” between hyperthyroidism and AFib “is a lot stronger” and more well accepted in the medical community. Dr. Brody then opined that the Work Injury was unlikely to have caused Arneson’s AFib, and the more likely cause was Arneson’s hyperthyroidism. Employer also provided the testimony of Dr. Elkins. Dr. Elkins, like Dr. Brody, stated that it was statistically far more likely that hyperthyroidism caused Arneson’s AFib than an electrical shock like the Work Injury.

The Department of Labor (“Department”) found that the Work Injury was a major contributing cause of Arneson’s AFib and that he was permanently and totally disabled. Employer appealed arguing it was error for the Department to accept Dr. Holloway’s testimony that the Work Injury caused Arneson’s AFib when Employer presented unrebutted evidence that the Work Injury was statistically highly unlikely to have caused Arneson’s AFib.

The South Dakota Supreme Court (“Court”) rejected Employer’s argument and relied on a Minnesota case in support, stating “[a]n opinion based solely on statistical improbability ignores the fact that, by definition, improbable events do occur.” Arneson v. GR Mgmt., LLC, 2024 S.D. 61, ¶ 35, 13 N.W.3d 206, 217 (citing Ingram v. Syverson, 674 N.W.2d 233, 237 (Minn. Ct. App.2004) (noting “medicine is an imperfect science and a plaintiff's symptoms may not always be proven by tests and statistics.”). The Court then found Dr. Holloway’s opinion was sufficient to show the Work Injury was a major contributing cause of Arneson’s AFib and affirmed the Department.

While the Court has still not defined “major contributing cause.” The Arneson opinion provides additional information on what “major contributing cause” is not. In this case, the Court was offered an opportunity to define major contributing cause in terms of probability and soundly rejected it. Employers should be aware of cases like this that continue to define the causal standard for compensable injuries.

Brewer v. Tectum Holdings, Inc., 2025 S.D. 23, 20 N.W.3d 433, concerned an appeal of denied medical and disability benefits. The South Dakota Supreme Court affirmed the Department’s finding that a claimant was not permanently and totally disabled but overturned the Department’s findings on causation. This case demonstrates the Court’s willingness to thoroughly review medical records, and assign its own weight to those medical records, in determining causation.

In September 2015, Joshua Brewer (“Brewer”) suffered a back injury while working for Truxedo, a bed manufacturer (“Work Injury”). He did not immediately feel pain but stated his pain intensified in the months thereafter. In December 2015, Brewer quit working for Truxedo claiming he could no longer work due to his pain.

Employer and Insurer paid for Brewer’s medical care related to the Work Injury until May 2016, when Dr. Douglas Martin performed an IME of Brewer and concluded the Work Injury was not a major contributing cause of Brewer’s back pain. Dr. Martin stated the Work Injury was “probably best described as a strain episode” but that it did not explain Brewer’s symptoms. Brewer then brought a Petition for Hearing seeking medical benefits for his Work Injury and claiming he was permanently and totally disabled.

At the hearing on his Petition, Brewer offered his medical records and the deposition testimony of his treating provider, Dr. Corey Rothrock. Dr. Rothrock opined that Brewer’s back pain originated from his sacroiliac (“SI”) joint and that the Work Injury was a major contributing cause of that pain. In opposition to the Petition, Employer and Insurer relied on the IME of Dr. Martin and a second IME of Dr. Wade Jensen. Like Dr. Martin, Dr. Jensen opined that the Work Injury likely caused a muscle strain, but that muscle strain had resolved and was no longer major contributing cause of Brewer’s symptoms.

On de novo review, the Court held that the Work Injury was a major contributing cause of Brewer’s back pain. In doing so, it relied heavily on Dr. Rothrock’s deposition testimony and Dr. Rothrock’s status as a treating provider, stating “the opinions of a treating physician may, in some cases, be more persuasive than those of a non-treating physician because of the knowledge gained through the claimant's treatment and more generally through treatment of the specific ailment that the claimant suffers.” Brewer, 2025 S.D. 23, ¶ 60, 20 N.W.3d at 447–48. The Court also found Dr. Jensen’s opinion less persuasive than Dr. Rothrock’s opinion because, in the Court’s view, Dr. Jensen gave inordinate weight to Brewer’s pre-Work Injury medical records.

Notably, in this case, the Court did not solely rely on Dr. Rothrock’s opinion to reverse the lower courts’ findings on causation. The Court also relied on its own opinion of the significance of a claimant’s medical records in determining that the testimony of Dr. Jensen, Employer’s and Insurer’s expert, was lacking. Employers should be aware that the South Dakota Supreme Court may take a liberal view of its role in evaluating medical records, as it did in this case.

In a move sure to motivate injured employees to get up off the couch and go back to work, the 89^th Legislature passed Texas House Bill 46 on June 20, 2025, set to take effect on September 1, 2025. The bill expands the conditions for which certain medical providers in the state can prescribe “low-level” tetrahydrocannabinols (THC) cannabis under the Texas Compassionate Use Program (TCUP).
  
Additionally, the level of permissible THC will increase, from the current limit of 1% THC by weight to up to 10 milligrams per dose, not to exceed 1 gram of THC per package.
 
Previously, medical marijuana under the Compassionate Use Program was limited to diagnoses rarely encountered in workers’ compensation claims, such as spasticity, Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig’s Disease), autism, terminal cancer, or incurable neurodegenerative diseases.  However, HB46 adds to that list some conditions that are often part of workers’ compensation claims: traumatic brain injuries and chronic pain.
 
Anyone familiar with current trends in Texas comp will recognize the seismic shift this expansion is sure to have on treatment and billing for work injuries.  “Traumatic brain injury” is an unfortunately vague term often used to diagnose mild and temporary cranial trauma without any lasting effects, such as a simple head contusion.  “Chronic pain,” meanwhile, is a favorite post-injury diagnosis used by some healthcare providers to prolong and inflate treatment—and the billing that goes along with it.  Circa September 2025, Insurance carriers can therefore expect to see more frequent billing for medical marijuana as part of injured workers’ treatment regimens for traumatic brain injuries and chronic pain.

In fact, already we have heard of one enterprising physician hoping to capitalize on the new legislation:
 

 

Copyright 2025, Stone Loughlin & Swanson, LLP

Last month we reported on House Bill 2488, which would permit Contested Case Hearings within the Division by Zoom conference or other forms of remote communication.  The bill passed the Senate in May 2025 and was signed into law by Governor Abbott on June 24.  Remote hearings can be held only at the agreement of the parties, or if there is a determination that good cause exists for the proceeding to be conducted that way.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

The Division has hired a second Administrative Law Judge to handle its increasingly congested Austin docket. Jordan Woody earned her law degree from NYU in 2012 and became licensed in Texas a year later.  She specialized in employment law prior to joining the Division of Workers’ Compensation, working at Carter Arnett, LLC, and Thompson, Coe, Cousins & Irons, LLP.  We look forward to seeing her behind the bench.

However, we have not been looking forward to the departure of San Antonio ALJ John Bull, who left the Division on June 30.  Judge Bull joined the agency in July 2024 and quickly established himself as a thoughtful and astute adjudicator.  No word on what might be in store for Judge Bull, but he will be missed. 

Taking Judge Bull’s place in San Antonio will be the current Lubbock ALJ Sandra Schuck-Garrant.  That transfer is pending the hiring of a new Administrative Law Judge in that field office.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

Our office recently received an email from a claimant attorney who may wish he had recalled it after hitting the ‘Send’ button.  Here is a what we found in the subject line of the email, redacted but otherwise verbatim:

“Subject: ChatGPT said: Here’s a clean, professional email you can send to [Adjuster] at [Insurance Carrier] with a CC to [Attorney], counsel for the carrier: Subject: Notice of Termination and Severance – [Claimant] (DWC #_______)”

We assume that the subject line was an unintentional display of candor on the attorney’s part, as it is the first such message we have received openly acknowledging that it was composed through the AI program ChatGPT rather than by the actual attorney. Well, one man’s e-communication faux-pas is another man’s newsletter fodder, so now we must ask: what is ChatGPT’s hourly billing rate these days?

The question is only quasi-facetious, though.  As the legal profession grapples with AI-generated communications at an increasing frequency, should clients pay lawyers for correspondence that was generated by an AI program rather than by the attorney him or herself?  If so, is such work being billed at the same rate as it would have been if the attorney had drafted it?  ChatGPT is, after all, intended as a time-saving program.  Does it violate the code of professional ethics to produce or charge a client for communications produced artificially?  And how does one respond to an artificially generated email anyway, and should we even feel compelled to? 

The future of AI is uncertain but developing at an exponentially rapid pace.  We may have to answer these questions far sooner than any of us expected.  In the meantime, accept our assurance that this clean, professional newsletter was drafted by a sentient, carbon-based entity.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

The annual Texas Workers’ Compensation Conference will be held on September 29 and 30 at the Embassy Suites in San Marcos.  The two-day compensapalooza will feature a wide array of topics, from “Data Analytics: Measuring and Managing Workers’ Compensation Outcomes” to “Leveraging Injury Data and Predictive Analytics to Manage Claims and Propel Organizational Health and Stability.”
 
On the evening of September 29 attendees can Head over to the hotel’s Spring Lake Ballroom for the fundraiser concert, from 7:45 to 9:15 p.m. Tickets to the show are $35.00 and benefit Kids’ Chance, a non-profit group that provides scholarships to children of those killed or severely injured in workplace accidents.  The featured “Head”liner is native Texan Sundance Head, winner of NBC’s The Voice in 2016.  Head’s signature tune may be “Darlin’ Don’t Go,” but you should ignore that and go anyway. To register, visit www.tdi.texas.gov/wc/events/wcconference.html. 


Sundance Head: Not someone I ever thought I would find myself writing about in this newsletter.
 

Copyright 2025, Stone Loughlin & Swanson, LLP

Well, it’s officially summer, and you know what that means: murder! 
 

Not literally, of course, but perhaps literarily.  If you’ll soon be on vacation and need a good beach read, they don’t come any beachier than the Florida-set detective novels of John D. MacDonald. MacDonald, best known for 1957’s The Executioners (the basis for the movie Cape Fear) is beloved by whodunnit afficionados for his twisty narratives, shady characters, and dialogue so hard-boiled it should be served with toast. 

  
For the uninitiated, a great place to start is his debut novel, The Brass Cupcake (Random House, 1950).   The title refers to the gold badge our hero, Cliff Bartellis, once wore on the police force, since reduced to a worthless trifle after his code of honor collided with the department’s systemic corruption. 
 
Now Cliff works as an insurance adjuster with the perilous specialty: recovering stolen jewels, then paying off half the value of the policy to whoever coughs up the goods, with a nice little commission for himself.  Except this time, the thief left something behind: the bludgeoned body of a nice little old lady. 
 
It seems that a $300,000.00 payout buys a lot of murder, and corpses begin accumulating like seaweed on the Florida coast.  Meanwhile, Cliff’s old buddies on the police force are none too pleased when their former brother in blue notices that all their suspects keep winding up in the morgue.  How long before they suspect him?  And, hey, isn’t he dating the dead lady’s niece…
But Cliff has set a trap for the perpetrator.  If he can keep his cool in the oppressive Florida heat, he might just find the killer, snag himself a tidy bonus, and get the girl (if she doesn’t get him first).  Has he got the smarts, instincts, and courage to expose the devious double-dealing? 
 
Of course he does.  After all, he’s an insurance adjuster.

Copyright 2025, Stone Loughlin & Swanson, LLP

In September 2024, longtime Commissioner Avery Wilkerson retired after serving on the Commission since 2008.  In May 2025, Gabe Coggiola was appointed and confirmed to serve the remainder of Commissioner Wilkerson’s term, through June 30, 2026.  Commissioner Coggiola has practiced law in South Carolina since 2005, working as an attorney on behalf of both injured workers and employers.  So, he brings a unique perspective to the bench.  He began hearing claims immediately. 

Also, the Senate confirmed the reappointment of longtime Commissioners Mike Campbell and Gene McCaskill, and also confirmed the reappointment of Chairman Scott Beck.  Unless something expected occurs, the Commission should be in a place of stability at least through 2028. 

As an ancillary but important update, the Commission is having trouble securing venues and court reporters for Hearings.  This has been an issue for several years now but has become more critical since the summer of 2024.  There is ad hoc committee working with the Commission to hopefully solve this problem soon.  Of course, this problem has caused delays in having claims heard and ultimately resolved.  

NWCDN State News – West Virginia

Dill Battle, Spilman Thomas & Battle, PLLC

With assistance from clerks Alan Parsons, Carter Capehart, and Jonathan Gharib.

July 10, 2025

At the June 12, 2025 Annual Conference of the West Virginia Workers’ Compensation Association, Insurance Commissioner Allan McVey provided an update on the state of the West Virginia Workers’ Compensation Insurance Market. Commissioner McVey reported 356 insurance companies are eligible to write coverage, with 281 insurance companies have an active policy. As of 5/31/25, there are 40,238 policies in West Virginia. There are 47 active self-insured employers in West Virginia. In calendar year 2024 , there was $251,931,031 direct premium dollars. The loss cost effective date changed from November 1 to January 1 with a 9.1% Loss Costs Reduction on January 1, 2025 ($15,000,000 savings). This year marks 20 consecutive years of loss costs decreases with overall premium declining 85.2%, a savings of $481,000,000 to employers. The residual market has 4.6% of policies.

Commissioner McVey reported that fiscal year 2025 benefit rates have been updated and the Average Weekly Wage (AWW) in the private sector increased 4% to $1,109.90, for an annual average salary of $57,715. A worker needs to earn $1,664.85 per week or $86,810 annually to receive the maximum allowable benefit. The minimum benefit is $193.33 weekly based on federal minimum wage of $7.25 per hour.

As of May 31, 2025, the Old Fund had 5580 active claims. (The Old Fund is the legacy fund for the West Virginia Workers’ Compensation Fund that was privatized in 2005.) The case reserves for the Old Fund is $728,100,339. There was a reduction of 9,346 claims in 10 years, and a reduction of approximately $1.35 billion in case reserves in those 10 years, with 80% of the case reserves are indemnity.

The Coal Workers’ Pneumoconiosis Fund (CWP) as of May 31, 2025, has 918 active claims with $166,790,467 in case reserves. This is an increase of 72 active claims in 10 years and an increase of approximately $20 million in case reserves over 10 years. The highest Claims and Reserves for the CWP was 2020/2021.

The Uninsured Employer Fund (UEF) as of May 31, 2025, had eight active claims and has $1,754,432 in case reserves. This is a reduction of 12 active claims over 10 years. An increase of approximately $964,000 in case reserves in 10 years. The UEF has an average of 13 active claims in 10 years. The Volatile Reserves are based on the claim type.

The Self-insured Employer Guaranty and Security Funds (combined) as of May 31, 2025, has 266 active claims, with $28,821,611 in case reserves. This is the reduction of 608 active claims in eight years. There is also reduction of $40.2 million in case reserves in eight years. The most recent “Active“ Self-Insured Employer to put claims into the SIE Fund was 2018. The most recent large “Active” Self-Insured Employer to put claims into the Fund was 2015.

The Office of the Insurance Commissioner is the administrator of the State Agency Workers’ Compensation claims, and Encova is the current carrier. This is the 15th policy year for the State Agency Workers’ Compensation in 2025. This includes more than 100 agencies, boards, and commissions with approximately 25,000 public employees, over 900 locations across West Virginia. The State Agency Workers’ Compensation claims are trending by claim count with a high of 1,525 in fiscal year 2018 to the current number of 1,261 in fiscal year 2025 year to date.

2025 Legislation: House Bill 2797 – Relating to Post Traumatic Stress Disorder Claims
(Effective July 11, 2025)

HB 2692 adds certified mental health nurse practitioners and certified psychiatric physician assistants to the list of health care professionals who may diagnose post-traumatic stress disorder (PTSD) as a compensable injury or disease of first responders under workers’ compensation law. The bill amends current law to state that such professionals must hold a master’s degree or higher, as well as holding a terminal license within their profession and be qualified to treat PTSD. The PTSD coverage for first responders is an optional benefit, and the claim may be covered if an employer has elected to purchase the coverage. The bill further clarifies that, while the initial diagnosis must be made by a licensed psychiatrist, certified mental health nurse practitioner or certified psychiatric physician assistant, may offer mental health treatment consistent for a PTSD diagnosis. The sunset date of July 1, 2026, was also removed making this optional benefit permanent.

West Virginia Supreme Court of Appeals

In the Spring Term of Court in 2025, the Court has issued three signed opinions and 50 memorandum decisions.

Compensable Psychiatric Diagnoses

In the Spring Term of the Court in 2025, the West Virginia Supreme Court of Appeals (WVSCA) issued an impactful memorandum decision concerning the requirements to adequately prove and develop a claim for compensable psychiatric diagnoses as required in W. Va. C.S.R. § 85-20-12.1 et. seq., commonly referred to as “Rule 20.”.

E.B. v. All. Coal, LLC, No. 23-409, 2025 WL 1203177 (W. Va. Apr. 25, 2025) (memorandum decision)[1]

In Alliance Coal, the Court was tasked with reviewing the Board of Review’s (BOR) denial, and the West Virginia Intermediate Court of Appeals’ affirmation (ICA), of a claimant’s request to add psychiatric diagnoses for PTSD, MDD, and GAD to his compensable injuries. The Concurring Opinions of three justices remanded the case to the BOR for a proper psychiatric evaluation in order to effectuate the purpose of West Virginia’s workers’ compensation laws.

The claimant, a coal miner, was seriously injured while working on August 30, 2020, when a hydraulic pressurized hose struck him in the face. He suffered significant physical injuries. In September 2020, Dr. Benjamin Moorehead of the Concussion Clinic at WVU Medicine recommended psychological treatment and a referral to a psychiatrist. Following the psychiatric assessment, the claim was held compensable for the psychological diagnosis of “adjustment disorder with mixed anxiety and depressed mood.” Two months following the closing of the claim, the claimant requested it be reopened for aggravation of the psychological injuries. Dr. Franklin Curry, Psy.D., filed the application, which was denied because Curry was not the claimant’s treating physician. A later application by Dr. John David Lynch, M.D., the claimant’s treating physician, was denied because Lynch was not a psychiatrist, though the claimant did submit additional reports from additional psychological providers opining on his additional diagnoses.

An additional request was then submitted after the claimant was referred for treatment to Dr. Matthew S. Zell, M.D., at WVU Psychiatry, who requested authorization for prescriptions to treat the claimant for post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder (GAD). Notably, Dr. Zell had not completed his residency training and education to be a licensed psychiatrist. This treatment request was denied by the claim administrator because the medications were not related to any conditions that been held compensable in the claim. The BOR affirmed the denial of the request for the prescriptions, as well as a request to the reopen the claim on a TTD basis for a lack of required materials needed to form a valid request as directed by the psychiatric treatment guidelines set forth in Rule 20, W. Va. C.S.R. § 85-20-12.3, such as a current mental status exam.

On appeal, the ICA affirmed the BOR. The ICA based its holding not on the lack of materials provided in Dr. Zell’s report, but on the fact that Dr. Zell was not yet a licensed psychiatrist, therefore his report could not be used to establish the validity of the additional diagnoses as required in the psychiatric treatment guidelines in W. Va. C.S.R. § 85-20-12.4. The ICA further denied the claimant’s request to remand the case to the BOR so the claimant could submit a report from a qualified psychiatrist.

On appeal to the WVSCA, the Majority vacated the decision of the ICA and remanded the case to the BOR to allow the claimant to submit an evaluation from a licensed psychiatrist. The Majority’s position was based on the purpose and policy of workers’ compensation legislation, stating that “[o]ne of the basic purposes of workmen's compensation legislation is to impose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries in the course of and as a result of their employment[.]” E.B. v. All. Coal, LLC, No. 23-409, 2025 WL 1203177, at *2 (W. Va. Apr. 25, 2025) (memorandum decision) (quoting Syl. Pt. 2, in part, Ney v. Workmen's Comp. Comm'r, 171 W. Va. 13, 297 S.E.2d 212 (1982)). To effectuate that purpose, the court held that the case should be remanded to allow the claimant to submit a qualified report.

The Dissent believed that the BOR and ICA should be affirmed, not because of Dr. Zell’s qualifications, but because the claimant’s evidence was not in compliance with the applicable rule, most notably being a missing mental status exam. See W. Va. C.S.R. § 85-20-12.8(d)(9). Justices Armstead and Bunn maintained their positions on the issue, which prevailed in the earlier case of Travers v. Blackhawk Mining, LLC, No. 23-173, 2024 WL 3726275 (W. Va. Aug. 7, 2024) (memorandum decision). In Travers, the BOR’s denial of the claimant’s request for additional psychiatric diagnoses was denied because the diagnosis request for the addition of PTSD and anxiety disorder failed to provide the information required by rule (W. Va. C.S.R. § 85-20-12.4). The case was decided with Justices Armstead and Bunn in the majority, along with Justice Walker. Justice Walker, notably joined the majority in Alliance Coal, to allow the case to be remanded.

Together, these cases exhibit a difference of opinion in how the Court views the requirements in the psychiatric treatment guidelines in W. Va. C.S.R. § 85-20-12.1, et seq., ’s to report and determine a compensable psychiatric diagnosis. Justices Armstead and Bunn have consistently held that the failure to follow the Rules’ requirements will be fatal to a claim. Justice Wooten has consistently held that the purpose of workers’ compensation legislation allows for some flexibility in the rules to allow claims to be decided on the merits. Justice Walker was the only justice to come out differently between the Alliance Coal and Travers cases—Justice Trump, who concurred in Alliance Coal, was not on the bench when Travers was decided. Justice Walker may have been more influenced by policy here because the ICA’s decision was based on Dr. Zell’s qualifications rather than the Rule 20’s requirements.

Regardless, Justice Walker recently retired after an illustrious career at the Supreme Court, leaving an unknown justice to fill the seat with the potential swing vote on this issue when it next reaches the WVSCA.

Compensability of COVID-19 Claim

Foster v. PrimeCare Medical of W.Va. Inc., No. 23-726, 2025 WL 1534690, -- S.E.2d-- (W. Va., March 18, 2025)

Chief Justice Wooton wrote the opinion for the majority. Betty Foster (“Ms. Foster”) filed a claim for workers’ compensation allegedly due to contracting COVID-19 through exposure to inmates and correctional/administrative personal who tested positive for the disease while working as a licensed practical nurse at the Southern Regional Jail, in Beaver, WV. PrimeCare Medical of West Virginia Inc, (“PrimeCare”) argued Ms. Foster may have been exposed to COVID-19 during two non-work-related trips, including a visit to a hospital emergency room.

Ms. Foster’s initial workers’ compensation claim was denied by the Claim Administrator. On appeal of the decision to the West Virginia Workers’ Compensation Board of Review (BOR), Ms. Foster presented into evidence an examination report by Dr. Bruce Guberman who determined Ms. Foster’s contraction of COVID-19 was an “occupational disease.” Dr. Guberman opined that there is no specific test to determine how one contracted COVID-19, but with a reasonable degree of medical certainty, felt Ms. Foster contracted the disease as a result of repeated exposures through her employment.

After Ms. Foster’s medical examination, another physician, Dr. Tomas Parker, reviewed her record and determined that COVID-19 was not an occupational disease, and found Ms. Foster had recovered quickly from COVID-19 pneumonia, according to a pulmonary function test. PrimeCare also produced a medical study further negating Ms. Foster’s position.

The BOR reversed the claim administrator’s denial of Ms. Foster’s claim, finding she had established entitlement to workers’ compensation benefits pursuant to a six-factor test found in W. Va. 23-4-1(f):

1.     There is a direct causal connection between the conditions under which work is performed and the occupational disease;

2.     That it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;

3.     That it can be fairly traced to the employment as the proximate cause;

4.     That it does not come from a hazard to which workmen would have been equally exposed outside of the employment;

5.     That it is incidental to the character of the business and not independent of the relation of employer and employee;

6.     And that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

PrimeCare appealed the BOR’s decision to the West Virginia Intermediate Court of Appeals (“ICA”), which vacated the BOR’s order, finding that the BOR’s order was “insufficient in that it does not discuss each of the six factors”, and that “any decision by the Board addressing 23-4-1(f) must discuss in detail each of the six factors and address whether the claimant has satisfied his or her burden to prove the presence of each factor.” The Board issued a comprehensive opinion which found Ms. Foster satisfied every prong of the statutory test. The ICA again reversed the Board’s decision finding, “with no evidence to refute the findings of this study (Risk Factor Study provided by PrimeCare) we now conclude that the evidence introduced by Ms. Foster fails to satisfy factor four of West Virginia code § 23-4-1(f).”

Holding: A workers’ compensation claim for work-related injury, disease, or death caused by, or arising from, COVID-19 may be held compensable, notwithstanding that workers generally were exposed to the disease outside of their employment, when a preponderance of the evidence established that the claimant contracted the disease in the course of and resulting from his or her covered employment and further established the other elements of the test set forth in W.Va. § 23-4-1(f).

In a workers’ compensation claim, in which it is alleged that the claimant contracted COVID-19 as a result of workplace exposure, statistical evidence as to the incidence of workplace-related risk vis-à-vis outside risk is relevant, but not dispositive, in determining whether the claimant’s exposure came from a hazard to which workmen would have been equally exposed outside the employment. W.Va. § 23-4-1(f) (2023). In deciding compensability, any such evidence may be considered together with the party’s evidence tending to prove or disprove that the claimant in fact contracted COVID-19 from exposure in the workplace.

Rational: The Court found it illogical to hold Ms. Foster was not exposed to a higher risk of workplace exposure due to her profession, and that no amount of proof could satisfy the statutory burden of proving she contracted COVID-19 from known work exposures. Rather, W.Va. § 23-4-1(f) sets out a framework for determining whether a disease is considered to have incurred in the course of, or resulted from, employment, a determination made upon consideration of all the circumstances. Where there is evidence of a known risk linked to a particular workplace hazard, this “raises a prima facie case of causation upon a showing that the claimant was exposed to a hazard and is suffering from the disease which it is connected.” “It is a logical inference that in the absence of a known risk a claimant may still prove his or her case but without the benefit of a rebuttable presumption of causation.”

Further, the court found PrimeCare’s argument regarding “risk” as being wholly determinative, illogical due to impossible burden this would place on health care workers having to prove, by a preponderance of the evidence, that the risk of exposure in the workplace for all healthcare workers, in all facilities, in all areas, is greater than the potential exposure outside of the workplace. This evidentiary burden would be impossible to meet and would negate the very purpose of W.Va. § 23-4-1(f), which was to provide a roadmap for relief in cases involving diseases of ordinary life. The West Virginia Intermediate Court of Appeals (“ICA”), failed to consider the Board’s exhaustive analysis of PrimeCare’s study (Risk Factors Associated with SARS-CoV-2 Seropositivity Among US Health Care Professionals, March 2021) regarding COVID-19 in major metropolitan areas, which the Board found was of little value and most likely would have very different results in a rural community, such as Beaver, WV.

Next, PrimeCare argues that W.Va. § 23-4-1(f) is a “poison pill” in that COVID-19 can never be a compensable occupational disease because the disease “was everywhere”, making the claimant’s burden of proof insurmountable under any and all circumstances. If read in isolation, W.Va. § 23-4-1(f)(4) could support PrimeCare’s argument, but under accepted canons of statutory construction, “statutes which relate to the same subject matter should be read and applied together so that the Legislature’s intent can be gathered from the whole of the enactments.” Whereas the “express purpose of the statute, W.Va. § 23-4-1, is to provide a guideline for assessing workers’ compensation claims involving ordinary diseases of life to which the general public is exposed outside of the employment which is nonetheless contracted in the workplace.”

The Legislature has acknowledged that workers’ compensation benefits may be awarded for work-related injury, disease, or death caused or arising from COVID-19. Specifically, the Court references W.Va. § 55-19-6, which provides in relevant part, “when a claim for workers’ compensation benefits is awarded for a work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment… such claim shall be the sole and exclusive remedy for such injury under W.Va. § 23-2-6.” Accordingly, the Court rejected PrimeCare’s argument that W.Va. § 23-4-1(f) was intended to exclude COVID-19 under any and all circumstances, because this would nullify W.Va. § 55-19-6. Ultimately, the Court reversed and remanded the ICA’s decision, finding Ms. Foster was eligible for benefits under a workers’ compensation claim.

Dissent – Justice Armstead

Justice Armstead dissents from the majority on two separate grounds; (1) the petitioner did not clearly establish that she contracted COVID-19 during the course of her employment, and (2) she failed to submit any evidence on one of the factors in West Virginia Code § 23-4-1(f).

Justice Armstead stated that there must be three elements met, for a claim to be compensable under West Virginia’s workers’ compensation laws; (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. The claimant had multiple situations where she was potentially exposed to COVID-19, including a trip to the ER, where she tested negative five days after a potential work place exposure. Ms. Foster had another potential COVID-19 exposure both inside and outside her place of employment during the general time of her claim. Two separate treating physicians did not consider Ms. Foster’s COVID-19 contraction related to her occupation. Therefore, Justice Armstead found that the Court should have ruled in favor of the ICA, concluding Ms. Foster failed to satisfy her burden of establishing she contracted COVID-19 in the course of her employment.

Next, the ICA concluded Ms. Foster repeatedly failed to introduce any evidence addressing whether a medical professional is at greater risk of exposure than those outside of such employment. Justice Armstead agreed with the majority, that a court must consider “all of the circumstances” surrounding Ms. Foster’s claim under W.Va. § 23-4-1(f), and in doing so, he finds that Ms. Foster failed to meet the requirements for compensation. As mentioned, Ms. Foster failed to establish that her COVID-19 infection could be “fairly traced to the employment as the proximate cause.” Further, Ms. Foster failed to develop any evidence pertaining to the fourth factor, that the injury does not come from a hazard to which workmen would have been equally exposed outside of the employment, despite having multiple opportunities to do so.

Justice Armstead found Ms. Foster failed to satisfy her burden of establishing the compensability of her claim because she had a potential COVID-19 exposure outside of the workplace. Justice Armstead also found the clear weight of the medical opinions in the record did not support a finding that Ms. Foster’s COVID-19 infection was related to her occupation.

Weighing of the Evidence Submitted in a Workers’ Compensation Claim

Workman v. ACNR Resources, Inc., ___ S.E.2d ___, 2025 WL 1603935 (W.Va., June 6, 2025).           

In West Virginia, worker’s compensation claims require an administrator to provide appropriate sums for medical care under West Virginia Code § 23-4-3(a)(1), and limits the benefits a claimant can receive to the period that they either: reach maximum recovery; are released to return to work; or, have returned to work, under West Virginia Code § 23-4-7a (2005). R resolution of any issue raised in administering Chapter 23 of the West Virginia Code (the Workers’ Compensation Act), such as determining whether to award benefits or allow treatment, must be based on a weighing of all evidence in accord with West Virginia Code § 23-4-1g.

In Workman, the Supreme Court of Appeals of West Virginia held that a claim administrator or any later factfinder in worker’s compensation claims must make its determinations in compliance with West Virginia Code § 23-4-1g(a) (2003). The statute requires a factfinder to weigh all the evidence presented and only then decide the merit or lack thereof of a claim. The Court made clear that any determination made by taking one side’s evidence as dispositive while disregarding all other evidence will not stand as a valid weighing of the evidence presented to a factfinder.

Caitlin Workman worked for ACNR as a maintenance trainee at their Marshall County coal mine and was there on November 8, 2021, when a chain snapped and struck her right upper extremity area. Workman was taken to Wheeling Hospital where she was diagnosed with a right shoulder contusion and back laceration. The next day, a PA at the hospital, Ms. Snyder, noted that Workman had symptoms consistent with an injury to the right upper extremity area (RUE) and determined she could not go back to work. Around November 19, 2021, the claim administrator held the claim compensable, and over the next month, Workman continued to show symptoms of a RUE injury.

Workman engaged in physical therapy but still suffered from many of the same RUE injury symptoms as before, and on December 1, 2021, Ms. Snyder put in a request to the claim administrator for an orthopedic consultation and EMG imaging. On December 15, 2021, Dr. Mukkamala performed a medical evaluation, and determined that Workman had reached her maximum degree of medical improvement (MMI) for compensable conditions. He also determined that she required no further diagnostic studies or treatment, and found that she could return to work. Based on this evaluation, the claim administrator suspended Workman’s temporary total disability (TTD) benefits, in supposed compliance with West Virginia Code § 23-4-7a (2005), and denied the requests that Ms. Snyder made on her behalf for further treatment.

Workman continued to have pain and sought additional medical evaluation which confirmed she was still injured and needed further treatment. She eventually protested the claim administrator’s TTD closure order to the West Virginia Worker’s Compensation Board of Review (BOR). The BOR affirmed the decision citing only Dr. Mukkamala’s evaluation and a preponderance of the evidence as justification, citing to West Virginia Code § 23-4-1g(a). Workman appealed this decision to the West Virginia Intermediate Court of Appeals (ICA) which affirmed the BOR decision. Workman appealed.

The West Virginia Supreme Court of Appeals reversed the ICA holding that the BOR’s decision was in contravention of the requirements stipulated in West Virginia Code § 23-4-1g(a), that a factfinder must weigh all the evidence presented to it and give an explanation as to why they found for one presentation of the facts over another. The Court primarily made this determination based on the fact that the BOR and ICA decisions were almost exclusively founded on the evaluation performed by Dr. Mukkamala. However, they dismissed the evaluations conducted by other medical professionals as to the ongoing nature of Workman’s injuries and the cause of those ongoing injuries. The Court also determined that if the BOR and ICA had properly reviewed the evidence they would have found that Workman had not reached her MMI and as such was still entitled to TTD benefits. The Court reversed the decision of the ICA and remanded the matter to the BOR to award Ms. Bowman TTD benefits as well as additional testing and treatment as needed.

The implications from the Court’s decision seem to be rather straightforward. The Court will hold the fact finders in workers’ compensation claims to the standard expressed in West Virginia Code § 23-4-1g(a): the medical evidence presented to them must be meaningfully examined and weighed. Should the finders of fact choose to disregard a piece of medical evidence presented to them, the Court will not uphold the decisions made unless an explanation is given for their decision. Merely declaring one set of facts or evaluations to be correct is not sufficient, and that without a proper explanation, such a determination will not be upheld. Additionally, and more specific to this case, the Court held that Dr. Mukkamala’s evaluation was invalid because he presented no alternative explanation for the source of the injury and instead declared that it was not from the previous compensable injury.

The Court determined that if a claimant presents evidence as to the source of an injury, it cannot be dismissed without a proper weighing of the evidence presented by both parties as required in W. Va. Code § 23-4-1g(a). A mere declaration presented by the party opposing a claimant will not be dispositive in determining that the claimant does not have a compensable injury. If there is a finding of an equal weight of evidence on the side of the claimant and opposing party, the finder of fact will side with the claimant.

For any party wishing to either bring or defend against a similar claim, Workman establishes the need for parties to present medical evidence that not only relays the symptoms or lack thereof of a party, but also a proper explanation of their presented evidence. A party cannot merely have a physician declare the other party’s assertions incorrect, there must be an explanation as to why they are incorrect or an assertion of an alternative explanation. Should a party fail to do so, a factfinder will not find in their favor and any appeal that party makes will fail. Additionally, if a factfinder fails to properly weigh the evidence presented by both parties, the determination will not be upheld should it be challenged.

Justice Armstead, joined by Justice Bunn, dissented. In his dissent, Justice Armstead states that the BOR’s findings were not clearly wrong and as such should have been given deference. He points out that the BOR addressed the complaints Workman made regarding her symptoms and after a “‘thorough recitation of the evidence submitted by the parties,’” determined that they were not caused by the compensable condition. Because the BOR examined the evidence presented by both parties and it was not clearly wrong, its determination that Workman had reached MMI and should therefore have her TTD benefits ended should have been given deference and upheld.

This decision by the Court makes clear that if a claim administrator or the BOR fails to properly evaluate the evidence presented by all parties, their determination likely be overturned.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823