State News

NWCDN Ohio State Law Update – February 2026

Ohio Bureau of Workers’ Compensation Update

BWC Actions

Ohio Bureau of Workers’ Compensation Unveils New Substance Use and Prevention Recovery Program

The Ohio Bureau of Workers’ Compensation (BWC) Board of Directors is considering an additional 1% reduction of Ohio workers’ compensation rates, potentially saving Ohio’s private employers nearly $10 million in premiums. If approved by the BWC Board, this would mark the eighth consecutive rate reduction under the current Administration and the 17th decrease in the past 18 years, continuing a long-standing trend of lowering costs for Ohio businesses.

The BWC Board will vote on the proposal at its Feb. 27 meeting. If approved, the new rate would take effect July 1. “We remain focused on keeping premiums low for Ohio’s employers,” said BWC Administrator/CEO Stephanie McCloud. “Today, the average rate levels for Ohio’s 245,000 private and public employers are at their lowest point in more than 65 years."

The proposed 1% rate cut represents an average statewide premium change, including administrative costs. The actual premium paid by individual private employers depends on several factors, including the expected future claims costs in their industry, their company’s recent claims history, and their participation in various BWC programs.

State Marijuana Law Repeal Effort Targets New Laws, Employers Brace for Changes

Ohio Attorney General Dave Yost has cleared the way for a campaign to repeal a new law tightening the state’s marijuana and hemp regulations. Yost certified the title and summary of a revised referendum petition challenging Senate Bill 56, allowing supporters to begin collecting signatures to put the issue before voters. The law is scheduled to take effect in March.

Passed by lawmakers in December, the measure restricts most intoxicating hemp products and adds penalties for certain marijuana conduct that voters legalized in 2023. Manufacturers said evolving cannabis policy creates added complications for workplace safety and drug rules.

Ohio Judicial Actions and Decisions

Challenge to Ohio Industrial Commission Authority

Lawsuits filed in Franklin County, Ohio are challenging whether Ohio’s workers’ compensation appeals judges meet legal qualifications, raising questions about how the state’s system for resolving disputes is administered.

The suits argue that the three members of the Ohio Industrial Commission, which hears appeals of BWC decisions, do not meet a statutory requirement for six years of recognized expertise in workers’ compensation law. Attorneys for injured workers say that could affect the legal standing of past rulings. Supporters of the commissioners maintain the officials are qualified and that the lawsuits are aimed at reversing unfavorable decisions.

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Berry v. Ohio Industrial Commission, 2025-Ohio-4720 (October 16, 2025)

In State ex rel. Berry v. Industrial Commission, the Ohio Supreme Court ruled that courts are not required to defer to the Industrial Commission’s interpretations of Ohio’s specific safety requirements. Courts must instead independently interpret them, particularly when the language is clear.

The Ohio Supreme Court held that courts should not merely defer to the Industrial Commission’s legal interpretations of the state’s specific safety requirements when reviewing whether an employer violated them. The court somewhat aligned itself with the U.S. Supreme Court’s landmark case, Loper Bright, which directed federal courts to independently interpret ambiguous statutes rather than rely on agency interpretations, as we have previously reported. But unlike the Loper Bright decision, which generally benefited employers dealing with federal agencies, the Berry decision could have the opposite effect when their injured employees accuse them of violating the state’s specific safety requirements. Ohio’s specific safety requirements are similar to OSHA’s safety standards, and Ohio employers are generally subject to both.

The Berry case stemmed from an employee’s applying for a VSSR award against his employer in the Industrial Commission. Generally, when an employee applies for a VSSR award, the BWC conducts an investigation, after which the Industrial Commission conducts a hearing to determine if the employer violated one or more of the specific safety requirements identified by the employee and whether any such violation contributed to the employee’s injuries. Although Ohio law requires the Industrial Commission to interpret the state’s workers’ compensation laws in favor of employees, that is not true for VSSR proceedings, where the benefit of any ambiguity of a rule would typically be interpreted in favor of the employer. Because of that, the Industrial Commission typically interprets the state’s specific safety requirements in a way that benefits employers in VSSR proceedings. That is what happened in the Berry case.

In a mandamus proceeding, which is similar to an appeal, brought by the employee after the Industrial Commission denied his application for a VSSR award, the 10th District Court of Appeals unanimously concluded that the Industrial Commission erred in denying the employee’s VSSR application and found the Industrial Commission’s interpretation of its own safety rules no longer warranted judicial deference. Two of the three appellate judges went further, holding that the Industrial Commission should find in favor of the employee and award him compensation.

In Berry, the Ohio Supreme Court agreed with the Court of Appeals that courts are not required to defer to the Industrial Commission’s legal interpretations of the specific safety requirements, particularly when the requirements’ language is clear. However, it found that the Court of Appeals went too far in ordering an award, emphasizing that determining whether a violation occurred and caused an injury involves factual questions—a power reserved exclusively for the Industrial Commission. The court issued a limited writ of mandamus, like an order, directing the Industrial Commission to revisit the case and resolve the factual issues it had previously bypassed but considering the interpretation of the specific safety requirements at issue, as determined by the Court of Appeals.

Although the Industrial Commission may not interpret the state’s specific safety requirements any differently than it had, employers should expect that their employees will likely take the position at the Industrial Commission and in the courts afterwards that the applicable safety requirements should be interpreted more broadly in favor of finding employer liability and an award. Employees will also have another argument to make at the Court of Appeals, now being able to argue that the Berry decision makes it incumbent on the Court of Appeals to interpret the specific safety requirements at issue and not simply rubber-stamp the Industrial Commission’s interpretation. The Berry case also signals that Ohio courts may be less inclined to defer to other administrative agencies, resulting in broader impacts beyond the workers’ compensation system. Employers should continue to monitor legal updates in this area.

Temporary Total Disability (TTD)

State ex rel. Papageorgiou v. Avalotis Corporation, 2025-Ohio-5371 (December 3, 2025).

The Ohio Supreme Court affirmed the denial of temporary total disability benefits to an injured worker who did not report for a light-duty assignment that two doctors said he could do.

In State ex rel. Papageorgiou v. Avalotis Corp., Evangelo Papageorgiou, an employee of Avalotis injured his neck on the job in late May 2018 and underwent same-day surgery. On June 5, one of the surgeons who operated on him said he could do light-duty work with no heavy lifting. Later that month, an Avalotis project manager offered him a light-duty job that complied with the restriction on heavy lifting and instructed him to report the next day.

Mr. Papageorgiou’s treating physician reviewed the written job offer and agreed that Mr. Papageorgiou was capable of doing the work. Nevertheless, he did not show up for work. Avalotis stopped paying him and deemed his employment abandoned.

Mr. Papageorgiou sought temporary total disability benefits beginning the day after his injury. Avalotis opposed, arguing he was ineligible because he refused light-duty work. A district hearing officer granted TTD from June 28, 2018, based on Avalotis’ payment of wages in lieu of TTD benefits. A staff hearing officer, however, denied TTD after that date, concluding that Mr. Papageorgiou had voluntarily abandoned his job by rejecting the suitable position. After the Industrial Commission declined further review, Mr. Papageorgiou asked the 10th District Court of Appeals for a writ of mandamus granting TTD or ordering a new hearing. The appellate court declined his request.

The appellate court emphasized that Ohio law bars payment of TTD during any period in which work within an employee’s physical capabilities “is made available by the employer or another employer.” Avalotis made such work available, the court said, and both physicians — including Mr. Papageorgiou’s treating doctor — confirmed that the job fell within his medical restrictions. His failure to report constituted a refusal of suitable employment.

Because that evidence supported the commission’s conclusion, the court found no abuse of discretion.

The Supreme Court rejected Mr. Papageorgiou’s argument that the staff hearing officer should have determined whether Avalotis made the offer in good faith. The court held that he had not properly raised the issue of employer good faith during the administrative process and, in any event, had not offered a meaningful argument or evidence on appeal showing bad faith. His only claim — that the offer contained a single stated restriction — was characterized by the court as a challenge to whether the job was “suitable,” not an indication of bad faith.

The court further noted that the hearing officer’s reference to “voluntary abandonment” was not central to the outcome. The core rationale, the court said, was that Avalotis provided work that met Mr. Papageorgiou’s physical restrictions and he refused it; therefore, he was not entitled to TTD benefits. The state high court rejected Mr. Papageorgiou’s suggestion that the job was “legally deficient” because it did not set forth the physical requirements for the light-duty position, noting that he cited no authority to support that contention.

© Copyright 2026 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

As of January 1, 2026, the Mississippi Workers’ Compensation Commission has appointed the Commission’s newest Administrative Judge, Nick Saucier.

Nick Saucier succeeds the Administrative Judge Melba Dixon, whose retirement was announced in the fall of 2025. Judge Dixon spent her professional career in public service, with 28 years with the Mississippi Workers’ Compensation Commission and more than 41 years with the State of Mississippi.

Judge Saucier brings substantial experience in Mississippi workers’ compensation law, including more than 15 years representing employers and carriers in all phases of workers’ compensation litigation. Prior to his new role as Administrative Judge, he was the Managing Claims Attorney and Litigation Manager for Stonetrust Commercial Insurance Company, and before that he was a practicing attorney at Markow Walker, P.A. In addition, Judge Saucier served two decades as a Judge Advocate in the Mississippi Army National Guard and currently holds the rank as Colonel.

LEGISLATIVE AND CASE LAW UPDATE

Brinks Global Services And Arch Insurance Company v. Labor Commission And James Beaty, 2025 UT App 191 (Issued December 20, 2025)

                James Beaty, a truck driver was injured on the job from a truck accident. He filed and was awarded workers compensation benefits. His Employer appealed the award. On appeal, the Appeals Board found the medical panel failed to acknowledge the Beaty’s performance evaluation February 2021 showed “ he still lacked the strength and capacity to do his duties” and affirmed the ALJ ruling concluding that Beaty’s work accident medically caused a “permanent worsening of his pre existing (back) condition “and that the surgery on his lumbar spine was necessary to treat such worsening “

                The Employer Brinks challenged the Appeals Board ruling regarding the issue of the lumbar spine surgery claiming it was not supported by the evidence. On further appeal, the Utah Court of Appeals held the Appeals Board did not err in rejecting the medical panel’s report and by relying on other admissible and substantial evidence in the record.

Theresa Christensen v. Salt Lake Conty v. Labor Commission, 2025 UT 55 (Nov .13, 2025)

                Theresa Christensen sued her former employer (Salt Lake County) under the Utah Antidiscrimination Act claiming the County retaliated against her after she complained her supervisor was sexually harassing her. The Labor Commission Appeals Board concluded Christensen had proven the County retaliated against her and awarded compensation for certain damages she suffered. However, the Appeals Board denied her request for statutory attorney fees based on the Utah Supreme Court’s prior opinion in Injured Worker’s Ass. Of Utah State v. State, 2016 UT 21, 334 P3d14, which foreclosed such an award.

                On Appeal, the Utah Court of Appeals upheld the Boards decision and adopted the U.S. Supreme Court’s test from Burlington Northern Santa Fe Railway v. White, 548US53(2006) which held to constitute actionable retaliation, an employer’s action must be one “that a reasonable employee would have found to be maternally adverse”, “such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” However, on the attorney fees issue, the Court of Appeals disagreed with the Appeals Board and concluded the Board was free to award attorney fees.

                Both parties sought certiorari review which the Utah Supreme Court granted. With respect to the meaning of “adverse action” the Utah Supreme Court agreed with the Court of Appeals adopting the Burlington Standard, but disagreed with its application of the standard for the first time on appeal. The Utah Supreme Court held a remand was thus necessary because it was not apparent from the record that the Board’s decision can be upheld. Accordingly the Supreme Court remanded the case to the Appeals Board so it can apply the Burlington Standard for itself and make additional and necessary findings and conclusions.

                In addition, the Utah Supreme Court held that the case of “injured Workers” does not prevent the Labor Commission from awarding attorney fees or from evaluating those awards for reasonableness. “Accordingly, we affirm in part, reverse in part, and remand to the Board for further proceedings.” In doing so, the ultimate question before the Board was whether Christensen had proven the elements of a retaliation claim by a preponderance of the evidence, not whether she has satisfied the steps of the McDonald Douglas test.

“Finally, if the Board concluded that Christensen should “prevail on remand, nothing we said in Injured Workers prevents the Board from awarding Christensen her attorney fees and evaluating the amounts she requests for reasonableness.”

© Copyright 2026 by Ford G. Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.

In another case, the Department again accepted the opinion of a claimant’s treating doctor over the opinion of Employer’s and Insurer’s expert to find that a work injury was a major contributing cause of Claimant Daniel Jensen’s shoulder arthritis — despite evidence that Jensen’s shoulder arthritis pre-existed the work injury. Jensen injured his right shoulder on April 15, 2022, while throwing heavy straps during his employment with NexGen. Upon throwing the straps, Jensen reported a popping in his right shoulder followed by pain. Jensen was diagnosed with a rotator cuff tear in his right shoulder and underwent rotator cuff repair surgery in June 2022. Employer and Insurer paid for that surgery. However, during the rotator cuff repair surgery, it was determined that Jensen had chondromalacia and arthritis in his right shoulder that pre-existed the work injury.

Jensen initially felt relief from his symptoms for several months after the rotator cuff repair surgery. However, by early 2023, he began to experience significant pain, stiffness, and loss of right shoulder function which persisted over time.

Jensen submitted the opinion of his treating orthopedic surgeon, Dr. Jason Hurd, who concluded that the work injury caused a permanent aggravation of Jensen’s pre‑existing shoulder arthritis and therefore Jensen’s arthritic shoulder was compensable. Employer and Insurer submitted the opinion of its IME doctor, Dr. Edward Kelly, another orthopedic surgeon, who agreed with much of Dr. Hurd’s testimony. However, Dr. Kelly ultimately believed the work injury only caused a temporary aggravation of Jensen’s underlying degenerative shoulder disease. Dr. Kelly opined that because Jensen had experienced temporary relief after his rotator cuff repair surgery, Jensen’s right shoulder issues were likely caused by his underlying degenerative arthritis rather than the work injury.

The Department, however, accepted the testimony of Jensen’s treating provider that the work injury was a major contributing cause of Jensen’s shoulder degeneration despite evidence that Jensen’s arthritis predated the work injury. In siding with Jensen, the Department gave special weight to the finding that Jensen’s degenerative shoulder disease was asymptomatic until sometime after the work injury. Employer and Insurer should be aware that a work injury may still be considered a major contributing cause of a claimant’s pre‑existing condition if there is expert testimony that the work injury caused a permanent aggravation of that pre‑existing condition.

The South Dakota Department of Labor recently issued another decision accepting the causation testimony of a Claimant’s treating provider over the testimony of an Employer’s and Insurer’s experts. In Wager v. Buck’s Electric, Inc. (HF No. 96, 2023/24), Claimant, apprentice electrician Zachary Wager, developed a hernia shortly after engaging in heavy lifting activities at work on June 15, 2021. Employer and Insurer initially accepted the hernia as compensable and paid for Claimant’s care related to the hernia. Claimant later developed nerve pain related to his treatment for the hernia. Claimant underwent an IME, in which the IME doctor opined that Claimant’s hernia had, in fact, been caused by a congenital condition rather than the work injury.  However, Claimant later obtained an opinion from his treating provider that the work injury was a major contributing cause of the hernia.

The Department accepted the opinion of Claimant’s treating doctor over the opinion of Employer’s and Insurer’s IME doctor and held Claimant had met his burden to show that the work injury was a major contributing cause of his hernia and nerve pain. This case again shows the Department siding with a treating physician on causality over an IME doctor or other retained expert. In ruling in Claimant’s favor, the Department emphasized that a work injury need only be “a major contributing cause,” not the sole cause of a claimant’s current condition. Therefore, evidence of the Claimant’s preexisting congenital issues did not preclude a finding that the work injury was a major contributing cause of the Claimant’s current condition. 

The end of 2025, beginning of 2026 involved changes in the Indiana Worker’s Compensation administrative law area for Indiana. 

The governor of Indiana has appointed two new judges.  Steve Koers, a former defense attorney from Indianapolis, will serve as the single hearing member for the Indianapolis and Hamilton County area beginning February 2, 2026.  He temporarily served in the Southwest Indiana area taking over Judge Meagher, who retired in late 2025.  He is now serving in the central Indiana area following the retirement of Diane Parsons at the end of January.

The southwest Indiana area is now served by Pat McCrory, a former Indianapolis defense attorney whose experience is primarily defense outside the worker’s compensation field.

We are honored and pleased to announce that Melissa Petersen, who has been a long-term Attorney with Rulis & Bochicchio was appointed to take a position as a Workers’ Compensation Judge for the State of Pennsylvania effective 12/1/2025.

Also, we are pleased to report that Attorneys Vito Bochicchio and Brad Andreen published with the WorkComp College content on PA for the State Education program.

While not specific to Georgia or workers’ compensation, new USPS postmark rules could create potential problems. Effective December 24, 2025, the United States Postal Service (USPS) made changes to the postmark process, shifting the postmark date from when mail is deposited to when it is first processed at a regional facility. While the postmark date was previously entered at local USPS facilities, the mail must now travel to a regional facility, which may result in a delay of a day or more before being postmarked. Local USPS facility clerks can provide same-day postmarks pursuant to an in-person request, if needed. 

This change may impact deadlines imposed for submissions to the State Board of Workers’ Compensation and other courts, as well as payments to claimants and their attorneys. 

Pursuant to O.C.G.A. § 34-9-100(e), “Any claim, notice, or appeal required by this chapter to be filed with the board shall be deemed filed on the earlier of: (1) The date such claim or notice is actually received by the board; or (2) The official postmark date such claim or notice was mailed to the board, properly addressed with postage prepaid, by registered or certified mail or statutory overnight delivery.” 

Regarding weekly income payments, O.C.G.A. § 34-9-221 (b) provides, “Such weekly payments shall be considered to be paid when due when mailed from within the State of Georgia to the address specified by the employee or to the address of record according to the board. Such weekly payments shall be considered to be paid when due when mailed from outside the State of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the board. Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.”  Failure to do so results in a 15% late penalty. Similarly, O.C.G.A. § 34-9-15 (b) provides payments pursuant to the terms of settlement must be mailed within 20 days (17 days if from out-of-state) of approval to avoid a 20% late penalty. 

To avoid penalties and fees from late filings and payments, additional time may be needed if mailed via regular USPS. We strongly encourage clients to send time-sensitive items via certified mail (if USPS), FedEx, or UPS. Additionally, mailing items well before any deadline will help avoid issues.   

In other news, the Georgia legislature will consider increases in the maximum weekly temporary total disability (TTD) rate to $875.00  and maximum temporary partial disability (TPD) rate to $583.00. This would create a $75.00 increase from the current maximum TTD rate of $800.00 and a $50.00 increase in the current maximum TPD rate of $533.00,  both in place since July 1, 2023. If passed, the rate increases would likely go into effect for dates of accident occurring on and after July 1, 2026. No other significant legislative changes are expected in 2026. Please check back here for updates. 

Kansas statutes specifically set forth the following rule regarding injuries from workplace fights: “Compensation for an injury shall be disallowed if such injury to the employee results from … the employee’s voluntary participation in fighting or horseplay with a co-employee for any reason, work related or otherwise.” K.S.A. 44-501(a)(1)(E).

In Gutierrez-Lujan v. Wright Tree Service, AP-00-0492-288, 2025 WL 3481131 (Kan. Work. Comp. App. Bd. Nov. 13, 2025) the Kansas Workers Compensation Appeals Board affirmed the Administrative Law Judge denial of compensation to claimant Gutierrez-Lujan for an injury received in a workplace fight with a co-employee.

Gutierrez-Lujan and his foreman argued over the claimant’s job performance. After words were exchanged, a physical altercation occurred. The claimant alleged he was struck from behind, knocked to the ground, and kicked. The foreman, by contrast, testified that the claimant pushed him first, prompting the foreman to slap the claimant in the face.

Another supervisor arrived at the scene and attempted to sort through the resulting “he-said, he-said” situation. Ultimately, both men finished their workday, and neither immediately requested medical treatment. Several days later, however, the claimant sought medical treatment on his own and, after being denied authorization for medical care, pursued a workers compensation claim against the employer.

At the Preliminary Hearing, the parties disagreed as to the nature of the workplace fight. Because K.S.A. 44-501(a)(1)(E) precludes recovery of workers’ compensation benefits for voluntary participation in a workplace fight, regardless of whether the fight is work-related or not, the claimant argued he was attacked, while the respondent contended the claimant was an active participant, if not the instigator.

The Administrative Law Judge focused on the witnesses’ credibility in determining which version of the facts of the fight were more believable. After observing the witnesses testify and reviewing their depositions, the Judge concluded the claimant was not a passive victim but had voluntarily participated in the fight. Accordingly, she denied the claimant’s request for benefits.

The Workers’ Compensation Appeals Board affirmed the denial of benefits, emphasizing that credibility determinations made by the Judge are entitled to deference. Because the employer proved the statutory defense, the claimant was denied workers’ compensation benefits. 

The Gutierrez-Lujan Appeals Board decision evidences an important consideration in workplace fight cases in Kansas: The outcome of cases can ultimately depend on the credibility of the witnesses. The supervisor, while presumably minimizing his involvement, admitted striking the claimant in response to being pushed. By making this admission, he established that a voluntary fight had occurred. The Judge further noted that the supervisor had no history of striking other employees or engaging in abusive behavior. As a result, the Judge concluded there was no evidence that the supervisor suddenly broke character and assaulted the claimant.  The Judge concluded that the supervisor reacted to a provocation. Based on these facts, both the ALJ and the Board determined the altercation under the law, was voluntary on the part of the claimant, precluding him from receiving workers compensation benefits for his alleged injury.

January 2026

Tennessee Supreme Court Clarifies Compensability Standard for Aggravation of Pre-Existing Conditions

On December 22, 2025, the Tennessee Supreme Court issued the Edwards v. Peoplease, LLC. decision which provided much-needed clarification on the proof needed to establish a compensable aggravation of a pre-existing condition. 

In Edwards, the employee was a truck driver who was involved in a motor vehicle accident when one of her tires blew out. She received authorized medical treatment with Dr. Jason Hutchison, who diagnosed her with end-stage tricompartmental arthritis in both knees. Bilateral knee replacement surgeries were recommended. Dr. Hutchison opined that the knee arthritis was pre-existing, but that the accident “may have caused a significant exacerbation of the arthrosis.” However, Dr. Hutchison further opined that the exacerbation of knee symptoms was not compensable under the Tennessee Workers’ Compensation Law. Employer denied responsibility for the knee replacement surgeries under workers’ compensation.

The employee sought a second opinion with Dr. Timothy Sweo. Dr. Sweo agreed that knee replacement surgeries were appropriate, but Dr. Sweo opined that the need for both knee replacements was most likely greater than 51% caused by the work accident.

The trial court convened an expedited hearing and ruled that Ms. Edwards was likely to prevail on the merits. The trial court found that Dr. Hutchison had misapprehended the law by concluding that the exacerbation of a pre-existing condition is not compensable under the Tennessee Workers' Compensation Law. The trial court agreed with Dr. Sweo’s opinion that the need for knee replacement surgery was primarily caused by the work accident and ordered the Employer to pay for medical benefits, including the knee replacement surgeries.

On the first appeal to the Workers’ Compensation Appeals Board, the Appeals Board affirmed the trial court’s order that the employer should provide medical treatment for any symptoms related to the accident but reversed the trial court’s order for knee replacement surgeries. The Appeals Board remanded the case back to the trial court.

On remand, both parties retained additional medical experts. The employer hired Dr. Christian Claiborne, who opined that “an aggravation is synonymous with an anatomic change” and that Ms. Edwards had not suffered a permanent anatomic change from the accident. Like Dr. Hutchison, Dr. Claiborne testified that the pre-existing arthritis, not the truck accident, necessitated knee surgery. 

The employee hired Dr. Lawrence Schrader, who opined that Ms. Edwards had sustained an aggravation to her knee arthritis that was more likely than not due to the truck accident. Dr. Schrader testified that Ms. Edwards was asymptomatic prior to the accident and became permanently symptomatic after the accident aggravated her pre-existing arthritis.

The trial court convened another hearing and determined that the opinions of Dr. Sweo and Dr. Schrader were supported by the evidence and again ordered the Employer to pay for bilateral knee replacement surgeries. As part of the trial court’s order, it again stated that Dr. Hutchison had misstated Tennessee law by opining that exacerbations of pre-existing conditions were not compensable. The trial court also stated that Dr. Christian was incorrect when he stated that an aggravation injury required an anatomic change.

On the second appeal to the Appeals Board, two of the three judges determined that Ms. Edwards’ knee surgeries were not compensable. While the majority found that the preponderance of the evidence supported the trial court’s finding that Ms. Edwards had sustained a compensable aggravation of her pre-existing knee arthritis, the evidence did not support a finding that the need for bilateral knee replacements was more than 50% caused by the truck accident. The majority attributed greater weight to the opinions of Dr. Hutchison and Dr. Christian than to the opinions of Dr. Sweo and Dr. Schrader. The dissenting judge disagreed with the majority’s conclusion, reasoning that there was sufficient evidence that the truck accident caused new or increased symptoms that led to functional limitations and the need for knee replacement surgery was hastened by the truck accident.

Employee appealed the Appeals Board’s decision to the Tennessee Supreme Court. The Supreme Court reversed the Appeals Board, finding that the post-reform workers’ compensation statute indicated a change from prior case which required a permanent worsening of a condition before an aggravation was compensable. The Supreme Court clarified that under current law, a compensable aggravation does not require proof of a permanent anatomic change or worsening of the condition.  Instead, a compensable aggravation requires: (1) proof establishing that the work accident contributed more than 50% in causing the aggravation, and (2) proof establishing that the aggravation contributed more than 50% in causing disablement or the need for medical treatment. The Supreme Court held that Ms. Edwards’ proof satisfied both elements and therefore determined that the employer was responsible for the knee surgery.

The Edwards decision represented an important clarification (and some would argue, a drastic change) in the analysis of compensability of aggravation injuries. No longer should we be focused on whether the accident caused an anatomic change to the pre-existing condition, since the Supreme Court determined that such a finding was not necessary. Instead, we should be more focused on the more general questions of whether the work accident was the primary cause of the aggravation, and whether the aggravation was the primary cause of the medical treatment at issue.

For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com