NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
LEGISLATIVE AND
CASE LAW UPDATE
Senate Bill 190 is a workers
compensation bill passed this 2025 session. It allows the Utah Labor Cimmission
to establish a fee schedule for hospitals which may charge for services based
on Medicare reimbursement rates if the commission so determines. This bill also
prohibits balance billing by Hospitals.
House Bill 301 is another workers
compensation bill that passed. It provides for a maximum base rate at which
ground ambulances can charge workers compensation and health insurers for
ambulance services and provides that mileage rates will be set by rule. This
bill also prohibits balance billing.
Darden Restaurant v. Chinyu
James Sun v. Labor Commission, 2024 UT App 153 (Issued Oct. 24, 2024)
Chinyu
James Sun suffered injuries in July of 2020 to his neck and right shoulder when
he slipped and fell while carrying a tub of ice, causing him to hit his head on
a wall and right shoulder on an ice machine. Although his whole upper body was
hurting, his right shoulder injury was the worst. Sun did not file a formal
accident report but alleged that he informed the Darden Restaurant management
in a voicemail the day of the accident. Following an evidentiary hearing in
which the Darden director denied getting a voicemail about the accident, the
Utah Labor Commission Administrative Law Judge determined that Sun failed to
give timely notice within 180 days of his injury as required under Utah Code.
Ann. §34A-2-407. On Motion for Review, the Labor Commission Appeals Board
concluded that because Sun was not aware his cervical injury was likely caused
by the accident until February 2021, there was no prejudice to Darden, and the
neck claim was not time barred. However, the Board affirmed the ALJ
decision as to the right shoulder claim. Darden appealed the determination that
the neck claim was not time barred. Sun filed a cross-petition arguing that the
shoulder claim should not have been dismissed because of untimely notice. The
Utah Court of Appeals affirmed the Board’s decision to dismiss the shoulder
claim but set aside the Board’s decision to allow the neck claim. The Court
reasoned that, under rules of statutory construction of the provision of the
reporting statute, that a claim is barred if the injured worker fails to notify
the employee within 180 days of the day on which the injury occurs. Sun’s
reliance upon earlier case law interpreting an earlier statute was rejected
because the legislature had removed the language allowing full benefits if
there was no prejudice to the employer.
C.R. England Inc. v. Labor
Commission, 2024 UT App 170 (Issued Nov. 15, 2024)
Jeziah
Johnson (Johnson) was resting in a sleeper berth traveling down the road when
his co-driver had to swerve to miss another vehicle. The rollover caused Johnson
to sustain both low back pain and an unspecified head injury. Respondents
medical evaluation concluded that Johnson sustained only a concussion, an
eyebrow laceration, and a low back strain/sprain as a result of the accident.
Johson’s neurologist concluded that, in addition to injuries noted above,
Johnson suffered headaches, anxiety and depression because of the accident.
The
Utah Labor Commission’s Administrative Law Judge referred the issues of
causation to a medical panel. The medical panel concluded the accident caused headaches
and permanently aggravated psychological injuries. The panel also mentioned
that Johnson smoked cannabis which also could be contributing to his
conditions. The Respondents objected to the report which suggested two reasons
for the psychological injuries: namely, both the accident and the cannabis use.
The ALJ agreed and requested that the medical panel clarify the report. The
medical panel agreed that the cannabis use did indeed worsen Johson’s
conditions but that it only worsened those conditions already caused by the
accident. The ALJ ultimately awarded benefits, and, on Motion for Review, the
Labor Commission affirmed. On appeal, the Utah Court of Appeals held that there
was substantial evidence supporting the decisions of the Labor Commission and
that Johnson could prevail on the issue of causation simply by showing that the
accident was a cause, and not necessarily the only cause, of Johnson’s
injuries.
Waxies Enterprises inc. v.
Thomas Halladay, 2025 UT App 7 (Issued Jan. 16, 2025)
Thomas Halladay and Waxies Enterprises entered
into a settlement agreement that included a Medicare Set Aside Allocation
(MSA). After the settlement agreement was approved by the Administrative Law
Judge (ALJ), Waxies asked Halladay to sign two additional documents that would
allow Waxies to assign its ongoing obligations under the MSA to a third party
and to provide payments that would last 14 years, but only if Halladay was
still living. Halladay refused to sign these documents. Halliday’s view was
that the settlement agreement specifically provided for payments to be made so
long as he lived which could be longer than 14 years. Waxies asked the Utah
Labor Commission (Commission) to either compel Halladay to sign the additional
documents or, in the alternative to set aside the settlement agreement entirely
and for Halladay to reimburse the funds already paid under the settlement
agreement. The ALJ assigned to the case rejected these options. On a Motion for
Review the Commission’s Appeals Board affirmed the ALJ’s decision. On judicial
review, the Utah Court of Appeals concluded that because there was not a
meeting of the minds on how long the yearly benefits were to be paid under the
MSA, the Commission had authority under its continuing jurisdiction to set
aside the settlement agreement due to a lack of a meeting of the minds on a
material provision. The Court also instructed the Commission to “revisit” the
issue of whether there was a meeting of the minds.
© Copyright 2025 by Ford G.
Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.
NEW WORKERS' COMPENSATION RATE EFFECTIVE JULY 1, 2025
The state of Delaware, Department of Labor, Secretary of Labor, LaKresha Moultrie, has announced that the average weekly wage (AWW) in Delaware for the calendar year 2025 is $1,386.46. This wage figure was derived from data from employers participating in the State’s unemployment insurance system.
Based on this weekly wage figure, the maximum weekly worker’s compensation rate will be $924.31. The minimum workers’ compensation rate will be $308.11. The daily rates are as follows:
Effective July 1, 2025
Wage of $1,386.46 and over:
Maximum $924.31
Day 1: $132.05
Day 2: $264.09
Day 3: $396.14
Day 4: $528.18
Day 5: $660.23
Day 6: $792.27
Day 7: $924.31
Minimum $308.11
STATE OF DELAWARE WORKERS’ COMPENSATION RATE CHART HISTORY
EFFECTIVE JULY 1, 2025
AWW $1,386.46 Maximum $924.31 Minimum $308.11
EFFECTIVE JULY 1, 2024
AWW $1,328.01 Maximum $885.34 Minimum $295.12
EFFECTIVE JULY 1, 2023
AWW $1,301.27 Maximum $867.52 Minimum $289.18
EFFECTIVE JULY 1, 2022
AWW $1,234.04 Maximum $822.70 Minimum $274.24
EFFECTIVE JULY 1, 2021
AWW $1,196.64 Maximum $797.96 Minimum $265.99
EFFECTIVE JULY 1, 2020
AWW $1,121.49 Maximum $747.66 Minimum $249.22
EFFECTIVE JULY 1, 2019
AWW $1,088.84 Maximum $725.89 Minimum $241.96
EFFECTIVE JULY 1, 2018
AWW $1,070.48 Maximum $713.65 Minimum $237.88
EFFECTIVE JULY 1, 2017
AWW $1,030.49 Maximum $686.99 Minimum $229.00
EFFECTIVE JULY 1, 2016
AWW $1,034.18 Maximum $689.45 Minimum $229.82
EFFECTIVE JULY 1, 2015
AWW $1,019.44 Maximum $679.63 Minimum $226.54
EFFECTIVE JULY 1, 2014
AWW $998.35 Maximum $665.57 Minimum $221.86
EFFECTIVE JULY 1, 2013
AWW $991.19 Maximum $660.79 Minimum $220.26
EFFECTIVE JULY 2, 2012
AWW $967.52 Maximum $645.01 Minimum $215.00
EFFECTIVE JUNE 13,2011
AWW $933.08 Maximum $622.05 Minimum $207.35
EFFECTIVE JUNE 22,2010
AWW $914.73 Maximum $609.82 Minimum $203.27
EFFECTIVE JUNE 16,2009
AWW $916.00 Maximum $610.67 Minimum $203.55
EFFECTIVE JUNE 3, 2008
AWW $907.73 Maximum $605.15 Minimum $201.72
EFFECTIVE JUNE 7, 2007
AWW $888.38 Maximum $592.25 Minimum $197.42
EFFECTIVE JUNE 7, 2006
AWW $857.46 Maximum $571.64 Minimum $190.55
EFFECTIVE JUNE 6, 2005
AWW $815.29 Maximum $543.53 Minimum $181.18
EFFECTIVE MAY 21, 2004
AWW $785.75 Maximum $523.83 Minimum $174.61
EFFECTIVE JUNE 4, 2003
AWW $760.21 Maximum $506.81 Minimum $168.94
EFFECTIVE JUNE 14, 2002
AWW $737.35 Maximum $491.57 Minimum $163.86
EFFECTIVE JUNE 20, 2001
AWW $703.65 Maximum $469.10 Minimum $156.37
EFFECTIVE JUNE 12, 2000
AWW $674.40 Maximum $449.60 Minimum $149.87
EFFECTIVE JUNE 15, 1999
AWW $652.02 Maximum $434.68 Minimum $144.89
EFFECTIVE JUNE 11, 1998
AWW $616.67 Maximum $411.11 Minimum $137.04
EFFECTIVE JUNE 18, 1997
AWW $588.69 Maximum $392.46 Minimum $130.82
EFFECTIVE JUNE 3, 1996
AWW $558.35 Maximum $372.23 Minimum $124.08
EFFECTIVE JUNE 15, 1995
AWW $535.79 Maximum $357.10 Minimum $119.06
EFFECTIVE JUNE 14, 1994
AWW $519.25 Maximum $346.17 Minimum $115.39
EFFECTIVE JULY 1, 1993
AWW $508.94 Maximum $339.29 Minimum $113.10
EFFECTIVE JULY 1, 1992
AWW $491.75 Maximum $327.83 Minimum $109.28
EFFECTIVE JULY 1, 1991
AWW $468.58 Maximum $312.39 Minimum $104.13
EFFECTIVE JULY 1, 1990
AWW $445.81 Maximum $297.21 Minimum $ 99.07
EFFECTIVE JULY 1, 1989
AWW $420.96 Maximum $280.64 Minimum $ 93.55
EFFECTIVE JULY 1, 1988
AWW $397.71 Maximum $265.14 Minimum $ 88.38
EFFECTIVE JULY 1, 1987
AWW $375.79 Maximum $250.53 Minimum $ 83.51
EFFECTIVE JUNE 5, 1986
AWW $366.33 Maximum $244.22 Minimum $ 81.41
EFFECTIVE JUNE 3, 1985
AWW $353.53 Maximum $235.69 Minimum $ 78.56
EFFECTIVE JUNE 15, 1984
AWW $347.45 Maximum $231.64 Minimum $ 77.22
EFFECTIVE JUNE 7, 1983
AWW $335.66 Maximum $223.78 Minimum $ 74.59
EFFECTIVE JUNE 1, 1982
AWW $312.66 $208.45 Minimum $ 69.47
A routine annual adjustment to workers’ compensation rates goes into effect on July 1, 2025. These changes—as required by Alabama Code § 25‑5‑68—are based on statewide average weekly wage data as determined by the Alabama Department of Workforce.
These
updated figures reflect increases of $42 and $11, respectively, from the
previous rates of $1,130 and $311 set on July 1, 2024.
About
the Author:
This
article was prepared by Mike Fish, an attorney with Fish Nelson & Holden,
LLC, a law firm dedicated to representing self-insured employers, insurance
carriers and funds, and third-party administrators in all matters related to
workers’ compensation. Fish Nelson & Holden is a member of the National
Workers’ Compensation Defense Network. If you have any questions about this
article or Alabama workers’ compensation in general, please contact Fish by
e-mailing him at mfish@fishnelson.com or by calling him
directly at 205-332-1448.
LEGISLATIVE UPDATE
The legislature in the 2025
session attempted a “fix” of what many viewed as an incorrect decision from the
Connecticut Supreme Court, Gardner v. Department of Mental Health and
Addiction Services, 351 Conn. 488 (March 18, 2025) (see below review of
that decision). As a result of Gardner, the Administrative Law Judges
were given discretion to award ongoing temporary partial benefits
notwithstanding that the claimant may have achieved maximum medical
improvement. This was viewed as a significant expansion of employers’ exposure
for workers’ compensation benefits.
The 2025 legislation (Public Act
25-12) is designed to resolve the expansion of benefits brought by the Gardner
decision and involved some give-and-take between those legislators who believed
that certain benefits should be increased and those that did not want the Gardner
decision to be applied. The legislation made the following changes:
·
For all claims from July 1, 1993 forward, a Judge
shall be required to establish maximum medical improvement and place the
claimant on permanency benefits if the claimant is receiving temporary partial
benefits. If the claimant is totally disabled, he/she will be entitled to
ongoing benefits for total disability notwithstanding the fact that he/she may
have been placed at maximum medical improvement.
·
For claims on and after July 1, 2025, C.G.S. §
31-308(b) will be expanded to allow for permanency of the esophagus (180 weeks)
and the intestinal tract (347 weeks). Additionally, the permanency benefits for
the cervical spine shall be increased from 117 weeks to 208 weeks.
·
For any death claim where there is no presumptive
dependent or dependent in fact, the parents of the decedent employee shall be
entitled to receive benefits for 312 weeks.
·
C.G.S. § 31-308a was amended to allow for a
supplemental 60 weeks of post-specific benefits, inclusive of any benefits
awarded pursuant to § 31-308a(a). To qualify for benefits under this provision,
the claimant must be unable to perform his/her usual work and either be
actively engaged in a vocational rehabilitation service or equivalent program,
or have completed this service or program.
·
A working group will be established “to study
rehabilitation services available” to employees with work injuries. The working group will review whether
rehabilitation services are adequately funded and will consider incentives,
including stipends, to encourage the utilization of rehabilitation services.
The only retroactive application
of the statute deals with the Gardner decision and essentially states
that for all claims from July 1, 1993 to the present time a Judge must award
permanent partial disability benefits if maximum medical improvement has been
reached and the claimant is capable of work. We have some question as to
whether this retroactive legislation will stand up to judicial review. In
Connecticut, normally the “date of injury” rule will apply, which means that
the version of the statute in effect as of the date of injury controls what the
rights and liabilities of the parties are. This retroactive legislation is
counter to that rule. Moreover, there is question as to whether the retroactive
application of this substantive change to the statute will pass constitutional
muster under both the state and federal constitutions.
The permanency for the esophagus
and intestinal track probably will not affect many claims. On the other hand,
the increase of permanency for the neck will provide enhanced benefits to many
injured employees. The increase in permanency for the neck seems to make sense
when compared to the number of weeks that are allowed for permanency to the
lumbar spine (374 weeks).
The expansion of death benefits
to parents of a deceased employee was brought about by the recent death of a
young State of Connecticut employee who was struck by a drunk driver while he
was working on a road crew. No workers’ compensation benefits were paid since
the young worker was not married. Many found this result to be unfair and
therefore sought this legislative change.
The increase of § 31-308a
benefits to 60 weeks may provide a substantial increase to injured workers who are not able to return to
their normal jobs and/or who have been assessed low permanency ratings. It will
also likely increase the number of individuals who will be willing to
participate in the state’s vocational retraining program. The legislation as
passed is vague as to whether there are 60 weeks of benefits for each body part
that is injured or whether 60 is the total number of supplemental weeks regardless
of the number of body parts involved. We expect claimants’ counsel will attempt
to seek supplemental awards of 60 weeks for each body part that is injured.
We interpret the statutory
changes to § 31-308a to allow the employer to take credit for any prior §
31-308a benefits previously paid. For
example, if the claimant had been paid a permanency award of 10% of the lumbar
spine and received 37.4 weeks of § 31-308a benefits then the net additional
benefits that could be claimed amount to 22.6 weeks (60 supplemental weeks
minus the 37.4 weeks previously paid). If this interpretation is correct then
the claimants who have received a lower number of weeks of § 31-308a previously
will benefit more from this new legislation; for example, a claimant who
received a 5% of the leg and equivalent § 31-308a benefits for 7.75 weeks might
be able to receive an additional 52.25 weeks.
Should you have any questions
regarding this new legislation, please do not hesitate to contact us.
CONNECTICUT
WORKERS’ COMPENSATION COMMISSION NEWS
Administrative
Law Judges Colette Griffin, Christine Conley and Michael Anderson have all been sworn in and have begun presiding over
cases.
Former
Administrative Law Judge Scott Barton has started a mediation company called ComProMise
Mediation Services. You can reach
him for mediation services at 203-910-5137 or email at compromisems@gmail.com
MEMORANDUM 2024-07
Memorandum 2024-07 has been issued by Chief
Administrative Law Judge Morelli regarding maximum compensation rates. The Chairman has ordered that the maximum
total disability rate for injuries occurring after October 1, 2024 is $1,654.00 (based
on the estimated average weekly wage of all employees in Connecticut). The maximum temporary partial/permanent
partial disability rate for accidents after October 1, 2024 is $1,191.00 (based
on the average weekly earnings of production and related workers in manufacturing
in Connecticut).
BURIAL
EXPENSES
As of January 1, 2025, the burial fee for deaths covered under the Workers’ Compensation Act is $14,371.23
based on the overall 2024 CPI-W increase for the
northeast of 3.5%. Connecticut General Statutes Section 31-306 was amended in
2021 to reflect that the compensation for burial benefits will be adjusted by
the percentage increase in the consumer price index for urban wage earners and
clerical workers in the Northeast as defined in the United States Department of
Labor’s Bureau of Labor
Statistics.
MILEAGE
REIMBURSEMENT
As of January 1,
2025 the mileage reimbursement rate is 70 cents per mile.
Previously on January 1, 2024, the
mileage reimbursement rate was 67 cents per mile, on January 1, 2023 the mileage rate had
been 65.5 cents per mile and as of July 1, 2002
the rate had been at 62.5 cents per mile.
The Chairman has issued the following new
memo which stated that physicians can charge for causation or permanency
opinions in a denied case:
Effective July 1, 2024, a treating physician
who is asked to provide a causation opinion or a Permanent Partial Disability
(PPD) rating on a denied claim may charge up to $400 for this
report. The report must be affirmatively requested by the patient or
their representative, and the patient would be responsible for payment. As
with standard special report fees, if a physician feels that an additional fee
is warranted, they may seek permission to charge that higher rate from an
administrative law judge. However, physicians considering requesting additional
fees should keep in mind that the patient bears the responsibility for payment
and should proceed accordingly.
The Professional Guide for Attorneys, Physicians, and Other
Health Care Practitioners and the Payor and Medical Provider Guidelines to
Improve the Coordination of Medical Services will be updated to reflect this
change.
MEMORANDUM 2024-04
Effective June 14, 2024, the following changes have been
made to WCC forms:
·
Form 30C has been
updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S.
Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section
7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139. Language on Post Traumatic Stress
Injuries has also been updated to reflect such injuries are pursuant to C.G.S.
Section 31-294k.
·
Form 30D has been
updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S.
Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section
7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139.
·
The Hearing Request
Form has been updated to allow
the option for an email address to be added under the Injured Worker section.
·
Voluntary Agreement
Form has been updated with “Check, if C.G.S. Sec. 5-142”to help WCC better
identify wage calculations which are pursuant to C.G.S. Sec. 5-142.
·
WCR-1: Rehabilitation
Request Form has been updated with options to either fax or email the form to
Rehabilitation Services in addition to mailing or submitting the form
in-person. An optional line has also been added for applicants to add their
email address.
Effective June 14, 2024, the following form is now available:
·
Indemnity Only
Stipulation and What it Means.
MEMORANDUM
2024-03
Effective July 1, 2024, wage statements should be attached
to all Voluntary Agreements. If the claimant is concurrently employed, wage
statements from all employers should be included with the submission. Failure
to attach a wage statement(s) will result in the rejection of the Voluntary
Agreement.
WORKERS’
COMPENSATION PORTAL
The Commission does have a website
where you can look up such information as to whether a hearing is assigned,
list of all claims for an employee, status of a Form 36, and interested
parties. This is quite a useful site and
is a different website than the Commission’s main site. It can be found at:
http://stg-pars.wcc.ct.gov/Default.aspx
NEW COMPENSATION
REVIEW BOARD PANEL
The new CRB panel
beginning January 1, 2025 will be Administrative law Judges Peter C. Mlynarczyk
and Daniel E. Dilzer along with Chief Administrative Law Judge Morelli.
QUINN v. PIERCE BUILDERS,
INC., 6539 CRB-1-24-4 (APRIL 25, 2025)
The claimant in this case, who detailed vehicles and
equipment for a living, alleged that on the date of injury he was an employee
of the respondent, a construction company, and sustained a left ankle/foot
injury in the course and scope of his employment. The respondents
contested the claim arguing that the claimant was an independent contractor and
there was no employee-employer relationship and also that the injury occurred
on a different date at the claimant’s home while he was cleaning his front yard
from a tropical storm. During the formal hearings, the claimant sought to
introduce a recording of a partial phone call he had made without the knowledge
and consent of the other party on the call. The respondents objected
pursuant to C.G.S. sections 52-570d and 52-184a, but the administrative law
judge entered the recording into evidence. The judge issued an April 2,
2024 Finding and Award concluding that the claimant was an employee, was not an
independent contractor, and that he sustained his left ankle injury during the
course and scope of his employment on August 4, 2020. The respondents
filed a Motion to Correct, which was denied, and appealed the decision to the
Compensation Review Board. On appeal, the respondents argued that the
weight of the evidence can only support a finding that the claimant was an
independent contractor, that the objective evidence showed that the claimant’s
injury occurred on a different date at his home performing a non-work related
task, and that the judge improperly allowed into evidence an illegally recorded
audio recording. In its decision, the CRB stated that they were not
persuaded that the judge applied the appropriate test to determine whether an
employer-employee relationship existed consistent with Hanson v.
Transportation General, Inc., 245 Conn. 613 (1998), which requires the
judge to consider the totality of the evidence and factors when using the
“right to control” test. The CRB took issue with the fact that the Judge
made no reference in his decision to the evidence and documentation submitted
by the respondents, including 1099s, business invoices, expense business
invoices, tax returns filed as a self-employed sole proprietor, and information
that the claimant hired an employee to assist him, and questioned whether that
evidence was included in the judge’s analysis. The CRB found that the
lack of analysis rose to a level to find the trier failed to consider relevant
factors and remanded the case for a new trial before a new judge, as the prior
judge is no longer a workers’ compensation administrative law judge. The
CRB also found that the recording of the partial phone call should not have
been allowed into evidence given the statutes that bar use of such evidence and
ordered that it be stricken from the record.
Attorney Maribeth McGloin of SDAZ is defending this case.
DODGE v. STATE OF CONNECTICUT/DEPARTMENT OF
MOTOR VEHICLES, 6538 CRB-8-24-4 (May 2,
2025)
The claimant died due to diagnosis of mesothelioma which
resulted from asbestos exposure in his
employment. The Administrative Law Judge
found the case compensable. The widow
was determined to be entitled to dependency benefits under Section 31-306 but
the Judge allowed a credit/moratorium as a result of third party
recoveries. The widow argued that the
moratorium should be based solely on recoveries due to occupational exposure to
asbestos and not non-occupational exposures.
The Judge and CRB disagreed and awarded the respondents the full
moratorium for third party recoveries due to asbestos exposure regardless if
the exposure was occupational or non-occupational.
SHAWNA ZITO-HANNAN, SURVIVING SPOUSE OF MICHAEL
HANNAN V. ELECTRIC BOAT, 6537 CRB-2-24-3 (May 20, 2025)
This claim for death benefits was dismissed by the trial
Judge and the dismissal was affirmed on appeal by the CRB. The claimant widow alleged that her husband’s
cardiac event that led to his death at home was due to physical and emotional
stress on the job. The decedent was a
design technician for the employer and would travel frequently to Cape
Canaveral, Florida to work. While in
Florida he would work six days per week; he would travel to Florida for two
weeks and then come back to Connecticut for one week. After a trip to Florida he returned to Connecticut
and the following day he died in his sleep at home. The cause of death was listed as hypertensive
heart disease, hyperlipidemia, tobacco use and thoracic aortic aneurysm. There were conflicting expert opinions
regarding the cause of death. The trial
Judge concluded that work-induced stress was not a substantial factor in
leading to the heart disease and death. The Board found that the ALJ had
applied the law correctly and they would not disturb his factual findings
dismissing the case.
FIORAVANTI V. NCR CORPORATION, 6545 CRB-5-24-6
(May 27, 2025)
The injured employee hurt his knee at work on February 7,
2005. He was paid a permanency award of 7.5% with a mmi date in
2013. Subsequently, in March 2019 the
claimant had an authorized total knee replacement. The employee was scheduled
to be seen by the treating surgeon for the knee in March 2020 but the exam was
cancelled because of the Covid pandemic.
Instead, the patient completed an online survey regarding the surgery
and his recovery. The treator at that
time did not establish mmi and gave no rating.
The employee died in October 2020 unexpectedly and for unrelated
causes. In February 2021 the treating
surgeon completed a Form 42 and listed the impairment of the leg at 40%; he did
not provide a date of mmi on the Form 42. At a later deposition the treating
doctor agreed that the rating was speculative because it was based on the
limited records before death and not an actual physical examination. The Administrative law Judge dismissed the
claim because he found mmi had not been established before the death and the
rating was speculative. No motion to
correct was filed but an appeal was taken to the CRB. The Board affirmed the dismissal finding that
there was sufficient evidence in the record to support the dismissal of the
claim for the posthumous permanency award.
GARDNER V. DEPARTMENT OF MENTAL
HEALTH AND ADDICTION SERVICES,
Conn. (March 18, 2025)
The claimant sustained a
compensable left hand injury on April 19, 2016. She underwent two surgeries to
the hand. Dr. Ashmead, the treating physician, rendered an opinion on March 11,
2020 that the claimant had attained maximum medical improvement within an 8
percent rating for the left wrist. Also, Dr. Ashmead indicated the claimant
continued to have work limitations and could not lift greater than 20 pounds.
The respondents, based on Dr. Ashmead’s report filed a Form 36 seeking to
establish maximum medical improvement and begin permanency payments. Claimant’s
counsel, however, objected to the Form 36 contending that the claimant was
entitled to ongoing temporary partial benefits and that the trial judge could,
in his discretion, order temporary partial benefits under the provisions of
General Statutes Section 31–308(b). The trial judge noted the claim was “novel”
but concluded that the claimant had achieved maximum: improvement and that the
Form 36 should be approved for permanency benefits. On appeal, the compensation
review board affirmed the ruling of the trial Judge that permanency benefits
were owed and not ongoing temporary partial benefits. The Appellate Court affirmed the CRB
decision, however, the Connecticut Supreme Court reversed that and concluded
that a Judge has “the discretion to award a claimant, after he or she reaches
maximum medical improvement, ongoing temporary partial benefits under Section
31-308(a) in lieu of permanent partial disability benefits under Section
31-308(b), up to the statutory maximum of 520 weeks.”
In our opinion, this is a significant
decision which increases possible exposures for temporary partial benefits and,
in general, increases the settlement value of many cases where the claimant
cannot return to work in their usual position. The legislature has attempted to
modify this decision with new legislation in the recent legislative session
(see above discussion).
2025 Kansas Legislature: The 2025
Kansas legislative session has now ended.
There were no significant changes to Kansas workers compensation
statutes in 2025. The Kansas workers compensation pro-employer 2011 reform laws
remain in place through the 2025 legislative session. The significant 2024
legislative changes (see below) which increased benefits to claimants have now had one year
to play out, and while we do not have any significant Kansas appellate court
decisions interpreting those 2024 changes, on the employer/carrier claim
handling ground level for new injury claims occurring after July 1, 2024,
employers are seeing increased compensation payouts, particularly for high wage
earners.
2024 Key Statutory Changes Recap:
1. Increased Caps (previous caps in parentheses):
a. Death benefit cap increases to $500,000 ($300,000).
i. Benefits can exceed death benefit cap for dependent children until the
later of
1.
age 18.
2.
age 19 or graduation if still in high school at age 18; or
3.
until age 23 if in vocational school or college.
b. Permanent Total
Disability Cap increases to $400,000 ($155,000).
i. To be eligible to pursue permanent total disability benefits, an injured worker must prove the work accident resulted in at least a 10% permanent partial impairment to the body as a whole or, if the injured worker has preexisting impairment, the injured worker’s total permanent partial impairment to the whole body must be at least 15%.
ii.
The injured worker must still prove they are realistically and essentially
unemployable as a result of the accident.
c. Permanent Partial
Disability Cap increases to $225,000 ($130,000).
i. Injured worker
must prove permanent partial impairment to the whole body from the work accident of at least 7.5% or, if the
injured worker has preexisting impairment, the injured
worker’s combined permanent partial impairment to the whole body must be at least 10%.
ii. Work
disability is still determined by the average of wage loss, and task loss,
related to the work injury.
d. If the work accident results
in only permanent partial impairment, an injured worker’s recovery is capped at
$100,000. ($75,000).
e. Caps will remain fixed until
July 1, 2027, at which time a cost-of-living adjustment will kick in to raise
caps on a yearly basis. The annual percentage increase will be based on a
5-year average of the percentage increase in the State’s average weekly wage.
2. Preliminary Hearings:
a. Injured workers shall provide
records to opposing counsel at least 20 days before a preliminary hearing. If records are not provided at least 20 days
before the preliminary hearing, the court can grant additional time for the
employer to provide evidence which may controvert the employee’s records.
a. The authorized
treating physician’s opinion as to the need for future medical is presumed determinative
on the issue of whether future medical will be awarded in cases where there
have been no invasive procedures. This presumption can only be overcome with
clear and convincing evidence. What
constitutes “invasive” will be the subject of litigation.
b. If the injured worker had
invasive treatment as a result of the work injury, the authorized treater’s
assessment that no future treatment will be needed is still presumed
determinative of the issue. However, that presumption may be overcome if
claimant proves it is more likely than not that future medical will be needed.
4. Court-ordered independent medical examinations (COIME):
a. The Administrative
Law Judge may only order one COIME without agreement of the parties.
i. If the ALJ does
order a COIME, the COIME must be done prior to Prehearing Settlement Conference.
ii. In addition,
the COIME may not be used for the purposes of a rating, permanent restrictions, or opinions on permanent
total disability.
b. Parties are still
free to agree to a joint IME.
5. Post award medical and attorney fees:
a. The only procedure allowed to
pursue post award medical treatment will be under the provisions of KSA
44-510k. An injured worker may not pursue post-award medical benefits under
preliminary hearing procedures of K.S.A. 44-534a.
b. If post-award benefits sought
are provided within 30 days after an application for post award medical is
filed, no attorney fees should be awarded without showing, by clear and
convincing evidence, that the claimant attorney made significant legal effort.
6. Medical records:
a. Upon receipt of notice from
the Division of the setting of a Regular or Post-Award Hearing, the parties
shall exchange medical reports including those by examining and treating health
care providers. The exchange shall be at least 30 days before the hearing.
b. The testimony of a treating or
examining health care provider may be submitted into evidence without
additional foundation by submission to the opposing side of a complete medical
report that complies with procedural rules set forth in the statute.
c. Upon receipt of a proposed
complete medical report, a party has ten days to file a written objection to
the offering party stating the grounds for the objection. The ALJ shall then
conduct a hearing on the objections as to whether the proposal meets the
requirements of a complete medical report.
7. Notice of injury:
a. An injured worker must notify
the employer of the accident within 30 days (was 20 days) from date of accident
or 20 days (was 10 days) from last date of employment, whichever is earlier.
8. Stipulated awards:
a. If the employee is represented by counsel, a settlement can be completed without the need for a settlement hearing. The Division created the appropriate stipulations and Award documentation. The Administrative law judge is given five days from receipt of the signed stipulation to approve the agreed award or settlement. Note however, there are significant employer/carrier advantages to formalizing the settlement before a Special Settlement Judge.
9. Social security offset:
a. An award of permanent partial
or permanent total disability shall be subject to an offset equal to 50% of the
claimant’s Social Security retirement benefits.
b. An award of TTD and TPD
benefits shall not be subject to an offset for Social Security Retirement
benefits.
10. Average Weekly Wage Computation:
a. The calculation of average
weekly wage shall include vacation, sick leave and PTO paid during 26 weeks
before accident.
b. In addition, the average
weekly wage calculation eliminates the first week of wages from
calculations if the
employee did not work a full week.
11. Unauthorized Medical Allowance:
a. The allowance per
case for unauthorized medical is raised to $800 (was $500).
12. Per Diem for medical trips:
a. If an employee is required to
be away from home all day to obtain medical treatment, the employer shall pay
the employee a $30 (was $15) per diem.
b. The employer shall be
responsible for reimbursement of the reasonable expenses of overnight
accommodation as needed to avoid undue hardship on the employee. This is a completely new benefit that did not
exist in previous law.
13. Transcription of Hearing:
a. The Director may order
hearings to be recorded by digital recording or other means and later transcribed
by a certified shorthand reporter or notary public who shall attest to the transcription’s
accuracy.
14. 2024 Rates Update (2025 rates come out after July 1, 2025):
a. The maximum weekly indemnity benefit rate
increased to $835.00, effective for injuries occurring 7/1/2024 through
6/30/2025, based upon annual indexing to the state average weekly wage. Likewise for the same period, the minimum
weekly survivor benefit rate for fatalities increased to $556.71. Effective for medical travel after July 1,
2024, the medical mileage reimbursement rate increased from $.655 cents per
mile to $.67 cents per mile.
About the
Author: This update was prepared by National Workers’ Compensation Defense
Network Kansas member Kim R. Martens of the Wichita, KS firm MARTENS
WORK COMP LAW LLC, a law firm dedicated to representing self-insured
employers, insurance carriers, and third-party administrators in all matters
related to workers’ compensation before the Kansas Division of Workers’
Compensation and the Kansas appellate courts. If you have any questions about
this submission or Kansas workers’ compensation in general, please contact Mr.
Martens by either e-mailing him at Kim@MartensWorkCompLaw.com or by calling him
directly at 316-461-0135.
After 16 years of dedicated service here at Bernard & Merrill, PLLC, we
proudly announce the retirement of Margaret (Meg) Sack.
Meg graduated from Saint Michael’s College (B.A. 1982) and attended New
England School of Law (J.D. 1987) where she graduated cum laude.
Since joining Bernard & Merrill, PLLC in 2009, Meg has been a driving
force behind the firm’s success and client relationships. In 2018, Meg became a
partner of the firm, continuing her dedication to workers compensation law. With
a sharp legal mind and unwavering professionalism, she brought insight,
integrity, and leadership to our practice and to the broader legal community.
Her contributions have shaped the culture and values of our firm, and her
mentorship has left a lasting impact on colleagues and clients alike.
As Meg transitions into retirement, we extend our deepest gratitude for her
years of dedication and excellence. While she will be greatly missed in the
daily life of the firm, we look forward to continuing her dedication to
workers’ compensation law, representing self-insured employers, third-party
administrators and workers’ compensation insurance carriers.
The Oklahoma Supreme
Court has accepted certiorari in a case in which the Workers' Compensation
Commission and the Court of Civil Appeals (COCA) differ in the interpretation
of the statute that governs the appointment of a new treating physician (Form
A). The case is SSM Health Care Corp. v. Monica Goodwin, Supreme
Court # 121,192.
The claimant suffered a
compensable injury to several parts of her body when a patient suffered a
psychotic episode and became combative. The employer admitted an injury to the
neck and shoulder. The ALJ ordered a change of physician to a shoulder specialist
who does not treat necks and later granted a Form A to send the injured worker
to a neck specialist. The employer objected and appealed. The appointment of
an additional Form A doctor was affirmed by the WC Commission.
The issue is the
interpretation of 85A O.S. Sec. 56(B). COCA, in a 2-1 decision, ruled that the
statute allows only one change of treating physician per case no matter how
many parts of the body are injured.
The dissenting COCA
judge wrote:
...."The Statute
does not preclude the Commission from ordering more than one change of treating
physician or otherwise limit how many changes may occur. Accordingly, I would
find that Sec. 56(B) provides one change of treating physician at the claimant's
request and that subsequent changes are allowed at the ALJ's
discretion...."
The
dissenting opinion implies that allowing more one change of physician per case
is reasonable, and does not violate legislative intent.
The Supreme Court will
decide the issue.
Nebraska Workers’ Compensation Burial Benefit to Increase Effective July 1, 2025
LINCOLN, Neb. – Beginning July 1, 2025, the burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,900.00. This benefit is provided in the event of an employee’s death resulting from personal injuries, as defined in Neb. Rev. Stat. § 48-151.
The burial benefit amount is reviewed and adjusted annually by the Nebraska Workers’ Compensation Court, as outlined in Neb. Rev. Stat. § 48-122(3).
A chart detailing current and past benefit rates—including those related to death benefits—is available on the court’s website: Benefit and Reimbursement Rates.
If you have questions about Nebraska Workers’ Compensation, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
UTAH
TRENDS
UTAH COURT OF
APPELAS DECISION RE: LABOR COMMISSION AUTHORITY TO RESCIND PRIOR APPROVAL OF
SETTLEMENT AGREEMENT
Waxies Enterprises, Inc. v.
Halladay, 2025 UT App 7 (January 16, 2025)
After reaching a settlement of a
claim made for injuries suffered while on the job, which the Labor Commission
approved, the parties discovered they had different ideas about how to
interpret one of the agreement’s material terms. The employer moved to have the
Labor Commission either compel the employee to sign additional documents to
implement its understanding of the agreement or set aside the prior approval of
the agreement. The Labor Commission denied both requests. On appeal, the Utah
Court of Appeals affirmed the denial of the motion to compel but reversed the
denial of the motion to set aside. With respect to the latter, the court
reiterated prior precedent that the Labor Commission has continuing
jurisdiction that encompasses the authority district courts have under Rule 60
of the Utah Rules of Civil Procedure. The court went on to hold the Labor
Commission had the authority to rescind its prior approval of the settlement
agreement once it was presented with a substantial question as to whether there
had been a meeting of the minds on the material term at issue. Because the appeals Board ruled that it
lacked such authority, Utah Court of Appeals set aside that decision and
instructed the labor Commission to revisit the issue.
© Copyright 2025 by Ford G.
Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.
On April 24, 2025, Governor Kay Ivey signed the Mary Anne Leonard Educators' On-The-Job Injury Act into law. Prior to this new law, public education employees had no access to workers’ compensation benefits. If they did not purchase private disability insurance, then they did not get paid if a work injury prevented them from working. Although they could previously request reimbursement for medical bills, the new law provides for the direct payment of medical bills pursuant to a fee schedule. The following is a breakdown of the key components of the new Act and how it compares to the traditional Alabama Workers’ Compensation Act.
Who is Maryann Leonard? Maryann (according to her FB page, this is how she spells her name) was an Alabama educator who hit her head in a freak accident while at work. The resulting injury turned out to be serious enough to prevent her from returning to her job as a teacher. She did not have disability insurance and, like all other public teachers in the state, had no access to workers’ compensation benefits. Her story of hardship became a catalyst for change which is why the new legislation bears her name.
Before: No weekly compensation was available to public education employees when they were out of work due to job injuries. Although an employee could submit incurred medical expenses for reimbursement, the process could be slow and there was no guarantee that the expense would be fully reimbursed.
Now: An employee’s salary can continue for up to 90 days post-accident. In addition, medical bills can now be paid directly through the Public Education Employees Health Insurance Program.
Who is Covered? Education employees such as teachers, bus drivers and lunchroom workers.
Who is not Covered? Part-time, substitute, temporary, non-full-time employees and volunteers.
How will the Compensation Aspect be Funded? The recently passed $10 billion education budget carved out $15.6 million to fund the Public Education Employee Injury Compensation Trust Fund.
When? The program shall begin accepting on-the-job injury claims on an implementation date declared and published by the board in consultation with the Board of Adjustment but not later than October 1, 2026.
How is the New Act Different from the Alabama Workers’ Compensation Act?
The Alabama Workers’ Compensation Act has been around for over 100 years. When you consider the number of provisions, amendments, and interpretive cases generated in that time frame, the new Act could only address a small percentage of what is included in the older and more expansive WC Act. The below short list represents the more notable provisions addressed by the new Act that are significantly different from the traditional WC Act.
Notice: An employee must give notice within 5 days of the injury. This is extended to 30 days where employee died or is not clinically able to report the claim without assistance. This is different than the 90 days available per the Ala. WC Act. In addition, the Ala. WC Act no longer requires written notice whereas the new Act specifies that the notice must be in writing.
Injury Reporting Form: Employee is required to sign the form. If employer refuses to complete and submit an injury report form after receiving timely notice, then it has to provide written findings of fact that support its decision.
Dispute Resolution: Any disputes between an employee and employer are referred to the Public Education Employee Injury Compensation Program Review Board. Disputes can also be adjudicated by an appointed hearing officer upon request of either party.
Appeals: Appeals of any Board or Hearing Officer decisions are made to the Circuit Court of Montgomery County as opposed to the Alabama Court of Civil Appeals.
Injury: It is not specifically defined as it is in the Ala. WC Act. Further, unlike the Ala. WC Act, there is no provision for the coverage of glasses or prosthetics that are damaged in an accident.
Temporary Indemnity: Instead of paying a percentage of the average weekly wage at the time of injury, the new law provides for full salary to be paid for up to 90 days. The door is also left open for the creation of a procedure to allow for additional paid weeks.
Occupational Disease: There is no mention of disease. This is most likely because Occ Disease statutes typically mandate that the disease be peculiar to the employment (i.e. black lung/coal industry). Since there are no diseases peculiar to education, it was probably intentionally left out.
Subrogation: Public Education Employees' Health Insurance Plan will pay medical bills subject to the applicable fee schedule and will retain subro rights against any responsible third party or the employee’s insurer that is responsible for the injury. Unlike the Ala. WC Act, there is no provision that the lien amount be reduced by a pro-rata share of the attorney fee (assuming an attorney was involved in the third party aspect).
Although the new Act is being referred to as workers’ compensation legislation it is not the traditional model that provides for unlimited weekly compensation benefits during a period of temporary disability nor does it provide for the payment of permanent partial or permanent total disability benefits once the period of temporary disability is concluded. As such, the compensation aspect of this new Act is more comparable to a private disability insurance policy with a finite number of available weeks.
As with any new legislation, how it will be implemented and enforced remains unclear. One thing is for sure, the Public Education Employee Injury Compensation Program Review Board, the appointed hearing officers, and the Montgomery County Circuit Court will be kept busy in the years to come.
About the Author:
This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.