State News

In Ladner v. Hinton Homes LLC, No. 2024-WC-00941-COA (May 6, 2025), the Mississippi Court of Appeals affirmed the Mississippi Workers’ Compensation Commission’s decision denying and dismissing Ladner’s claim for benefits, where the employee tested positive for marijuana immediately following a workplace injury. The Commission found that Ladner had failed to rebut the presumption raised by Mississippi Code Annotated § 71-3-121(1) by failing to prove by a preponderance of the evidence that intoxication was not a contributing cause of the accident. The Court’s opinion provides valuable insights about the evidence that could be needed to successfully rebut the statutory presumption against compensability.

What happened?

Ladner was employed by a contractor to frame houses for Hinton Homes LLC, which was deemed the statutory employer. One afternoon, following his return from a lunch break, Ladner fell through a hole while nailing plywood decking onto a roof and landed on the concrete foundation below. Ladner requested to be taken to hospital, where he was given medical care. When drug tested at the hospital, Ladner tested positive for THC. Ladner was not a medical marijuana patient at the time of the fall, making his consumption of marijuana illegal.

Following his release from the hospital, Ladner filed a claim for workers’ compensation benefits relating to his injuries. Hinton Homes asserting that the claim was barred pursuant to Mississippi Code Annotated § 71-3-7(4) and § 71-3-121(1), because there was a presumption that Ladner’s injury was proximately caused by his use of drugs illegally.

In an attempt to rebut the presumption, Ladner relied on his own personal testimony and the testimony of his coworkers. Ladner contended that he only smoked marijuana once, two weeks prior to the injury, making it impossible for the marijuana to have caused his fall. Ladner also relied on testimony from coworkers, who said that Ladner did not smell like marijuana or look impaired on the day of the injury. Significantly, Ladner did not present any expert medical evidence to challenge the validity of the drug test or to show the levels of THC present in his post-injury drug test.

What was the result?

The Court of  Appeals affirmed the Commission’s decision that Ladner had not met his burden under § 71-3-121(1) to prove by a ponderance of the evidence that his use of marijuana was not the proximate cause of the injury and that, as a result, the claim was barred by § 71-3-7(4).

The Court of Appeals discussed that Mississippi Code Annotated §71-3-121(1) gives employers the right to directly or indirectly administer drug tests to any employee that sustains an actual injury at work or claims to have suffered a work-related injury. Under this statute, if the employee tests positive for any illegal drug, then it is initially presumed that the illegal drug was the cause of the injury. The injured worker has a chance to rebut this presumption by affirmatively showing that the illegal drug use was not the proximate cause of the injury. To meet this burden, the injured worker must show that it was more likely than not that the presence of the illegal drug in his system was not a contributing cause of the accident. If the presumption is not successfully rebutted, then the injury is not compensable pursuant to Mississippi Code Annotated § 71-3-7(4).

Neither the Court of Appeals nor the Commission set a bright-line rule for the evidence necessary to rebut the § 71-3-121(1) presumption. However, the Court emphasized the Commission’s reliance on the fact that Ladner failed to introduce any medical testimony about his drug test or the interpretation of the test results and that Ladner instead relied wholly on lay testimony—his own and that of witnesses—to rebut the presumption. The Court agreed with the Commission’s determination that such lay testimony was insufficient to meet Ladner’s burden of proof.

What does this mean?

The decision suggests that claimants will need to present expert medical evidence to meet their burden of proof in rebutting the presumption under § 71-3-121(1). This might include getting secondary/confirmatory urine tests or presenting expert testimony about whether the level of an illicit drug in a claim’s system would have been too low to have been a contributing cause of the injury.

This case also highlights the importance of post-injury drug testing policies for Mississippi employers. Employers with such policies should drug test immediately after an injury is reported, as it is not the amount of the drug in the system that triggers the statutory presumption, but the presence of the drug.

Author

Jennifer Hughes Scott is a shareholder at Wise Carter Child & Caraway and has been practicing with the firm since 2004. She is a graduate of Mississippi College School of Law. Jennifer’s practice includes all aspects of employment law and workers’ compensation. Jennifer acts as a legal advocate and counselor to her clients and brings a forward-thinking perspective that supports her clients in successfully responding to HR and employment law challenges.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2025 – June 2025

Claimant Awarded a Load on Unoperated Bilateral Shoulder Claim

Ferris v. Pajco Inc. d/b/a Rhodes and Zurich American Insurance Co, Injury No: 20-046178

FACTS: On or about June 4, 2020, the claimant sustained an injury to his bilateral shoulders while attempting to pull a 50-foot hose that was full of fuel across the grass. The case was accepted as compensable and the claimant was sent to Dr. Kostman at the employee’s request, who performed prior surgeries to the claimant’s shoulders, on the right in 2005 and on the left in 2009. Dr. Kostman diagnosed bilateral shoulder strains and recommended conservative treatment including physical therapy and a selective injection to each shoulder along with the anti-inflammatories. The doctor placed him at MMI on February 24, 2021and assessed 0% disability to each shoulder.

The claimant’s attorney obtained a report of Dr. Volarich, who assessed 25% disability to each shoulder as a result of the work accident.

The only dispute was the nature and extent of PPD. The judge assessed 10% to each shoulder along with a 10% load. The decision was appealed and the Commission affirmed.  

Amputation Not Compensable as Work Accident Was Only a Triggering or Precipitating Factor in Causing Claimant’s Medical Condition and Disability

Hasselbring v. Macon County Nursing Home District and Treasurer of Missouri as Custodian of Second Injury Fund, Case No. WD87278 (Mo. App. 2025)

FACTS: In mid-2021, the claimant, who worked at a nursing home, began noticing pain in his left calf when he would walk long distances. In August 2021, after mentioning his pain to his cardiologist, the claimant was sent for a CT scan and a vascular surgeon told him he had a closed popliteal aneurysm in his leg, and because the aneurysm had completely closed off the condition was not acute, and the claimant developed some collateral blood flow to his foot. The doctor recommended that he undergo vein mapping and likely a vein bypass but did not insist that he do so immediately.

Then on November 3, 2021, the claimant was helping a resident out of a vehicle and the resident rolled her electric wheelchair over the claimant’s left foot. He immediately felt sharp pain going all the way down his left leg into his foot. The claimant went home and his wife looked at his foot and kept saying that his foot was white, which meant that he did not have any circulation, and she took him to the emergency room. At the hospital, the doctor noted that the claimant had acute ischemia and performed surgery to do everything possible to save his leg, but his left leg was amputated above the knee two days after the work accident. Thereafter, he was unable to return to work, had to use a wheelchair and was learning to use a prosthesis. The claimant took the matter to a hearing and the ALJ awarded benefits. The employer appealed to the Commission and reversed the Award, finding the employer’s expert credible, stating that the prevailing factor in the claimant’s loss of limb was an occluded left large popliteal artery aneurysm. The Commission found that the work accident was “merely a triggering or precipitating factor in causing employee’s medical condition and disability.” The claimant appealed.

HOLDING: The Court noted that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. The Court noted that while both the treating physician and the employer’s expert agreed that the wheelchair accident was the prevailing factor of the “crush injury” to the claimant’s left foot, the employer’s expert, whose opinion the Commission found more credible, did not conclude that the crush injury was the prevailing factor in causing the claimant’s disability. The expert testified that absent the claimant’s preexisting popliteal aneurysm, the crush injury or soft tissue damage would have been a benign event which would have been treated with leg elevation, ice and anti-inflammatories. In other words, the soft tissue injury would not have resulted in disability. In light of this, the Commission’s denial of benefits was affirmed.

Occupational Diseases Are Not Compensable Pre-existing Injuries That Trigger Fund Liability

Treasurer of the State of Missouri Custodian of the Second Injury Fund v. Penney, Case No. SC100693 (S. Ct. 2025)

FACTS: The claimant worked as a pharmacy technician from 1980 to 2019. In June of 2018, the claimant filed an occupational disease claim involving her low back. In February 2019, she filed another occupational disease claim involving her neck and upper back. In March 2019, the claimant filed her final occupational disease claim involving right carpal tunnel syndrome and ulnar nerve entrapment at the elbow on the left side. The claimant sought PTD benefits from the Fund. At a hearing, the ALJ concluded the claimant was permanently and totally disabled and determined that the Fund was responsible for benefits. The Fund appealed, arguing that the ALJ improperly considered the claimant’s preexisting occupational diseases as they are not compensable injuries pursuant to the statute. The Commission disagreed and affirmed the ALJ’s award of PTD. The Fund appealed.

HOLDING: The claimant alleged that her occupational diseases were a “direct result of the compensable injury as defined in Section 287.020.” The Fund argued that occupational diseases do not qualify under that subsection. The Court noted that there are two types of compensable injuries, injuries by accident and injuries by occupational disease. The Court noted that while occupational diseases are “compensable” under Section 287.067, the legislature chose to limit preexisting injuries that qualify under Category 2 to compensable injuries as defined in Section 287.020, the section pertaining to injuries sustained by accident. Therefore, the Commission’s decision was reversed and the claimant was not entitled to benefits from the Fund.

White vs. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED113099, Mo. App ED 2025

FACTS: In 2020 the claimant injured his chest while working on an overhead load spring on an industrial vacuum truck. He settled his chest injury for 12.5% disability. He had various preexisting conditions but relevant here was his October 2010 occupational disease claim involving his bilateral shoulders. He settled that claim for 23% of each shoulder or 106.72 weeks total. The ALJ determined that the Fund was liable for benefits based on his 2010 shoulder injury and the 2020 chest injury. The Fund appealed arguing that the claimant’s preexisting occupational disease claims did not qualify under the statute as occupational disease claims are not a compensable injury. The Commission affirmed the ALJ’s Award. The Fund appealed.

HOLDING: The Court noted that while this case was under appeal, the Supreme Court decided that occupational diseases are not compensable to trigger Fund liability and therefore are not covered by the Second Injury Fund. In light of this decision, the Commission’s decision was remanded for the Commission to consider whether the Fund had any liability as a result of any other qualifying preexisting disabilities.

All Pre-existing Disabilities Must Meet 50-Week Threshold for Fund Liability

Jarvis vs. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED113075 (Mo. App. 2025)

FACTS: The claimant worked as an iron worker and sustained multiple injuries throughout his employment. In 2001 the claimant sustained injuries to his right ankle and both arms and settled his claim for 57.75 weeks for the right elbow, 43.75 weeks for the left wrist, and 46.5 weeks for the right leg. He was awarded a 10% load and 21 weeks of disfigurement. In 2011 he sustained an injury to his right wrist and settled that claim for 20% disability. In 2015 he sustained his primary injury involving his bilateral legs and reached a settlement with the employer and proceeded with a Hearing against the Fund.

The claimant’s attorney obtained a report of Dr. Volarich who assessed disability with respect to the primary and preexisting conditions and opined that he was likely permanently and totally disabled as a result of the 2001 and 2015 injuries. He also obtained a vocational report of Mr. Lalk who ultimately concluded that if the claimant needed to elevate his leg as a result of the primary injury he would PTD as a result of the last injury alone. At a Hearing the ALJ determined that as a result of the 2001 injury the claimant sustained 57.5 weeks disability to the right elbow, 54.25 weeks for the right left and 43.75 weeks for the left wrist. The ALJ found the claimant failed to prove that he was entitled to benefits against the Fund as the left wrist injury did not meet the 50-week threshold. The claimant appealed and the Commission affirmed the ALJ’s decision denying benefits. The claimant again appealed.

HOLDING: The Court noted that it has been reiterated by the Supreme Court that a claimant may not rely on a non-qualifying preexisting disability to prove that he or she is PTD. The Court went on to note that Dr. Volarich’s PTD determination was based on the claimant’s primary injury combining with all three of his preexisting disabilities and since one of those was not worth 50 weeks, the claimant is not eligible for Fund benefits. The Commission’s decision was affirmed.

All Pre-existing Disabilities Must Meet 50-Week Threshold for Fund Liability; Load Factors Do Not Apply

Eckardt v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. SC100784 (S. Ct. 2025)

FACTS: The claimant worked as an aircraft mechanic in 1976. He sustained multiple injuries over the years, the last or primary injury in October of 2015 which resulted in a spinal fusion. He retired as he could no longer perform his job. The claimant sought disability benefits from the Fund and the ALJ found the following preexisting permanent partial disabilities: right knee, 80 weeks; left knee, 80 weeks; left shoulder, 92.8 weeks; left wrist, 78.75 weeks; right wrist, 70 weeks; and right shoulder, 46.4 weeks. The claimant’s attorney presented three reports and in the last report the doctor stated that the claimant was PTD due to the primary injury in combination with all six of his preexisting disabilities. The ALJ acknowledged that the right shoulder injury did not reach the statutory threshold of 50 weeks, but found the doctor’s reliance on that injury “not significant when considering all of the qualifying preexisting injuries.” The ALJ did believe the claimant was PTD and the Fund was responsible for benefits. The Fund appealed, arguing that occupational diseases do not qualify and that the claimant’s right shoulder injury did not qualify.

The Commission reversed the ALJ’s award and denied the claim. The claimant appealed, arguing that the Commission misconstrued the evidence by finding the doctor relied on a non-qualifying right shoulder injury and in the alternative argued that a load factor should apply to enhance the amount of PPD attributed to his right shoulder injury, pushing it over the 50-week statutory threshold.

HOLDING: The Court disagreed with the claimant’s argument that a load factor is appropriate, as they noted that as of January 1, 2014, the legislature eliminated claims for PPD and in doing so also eliminated the load factor analysis. The Court went on to further note that nothing in the statute permits or even suggests a load factor may be applied to increase the amount of PPD attributed to a preexisting disability. Therefore, the Court rejected the argument that a load factor should apply. Also since the doctor’s opinion with respect to perm total disability included the claimant’s non-qualifying right shoulder injury, the claimant did not meet his burden in establishing Fund liability. The Commission’s decision was affirmed.    

Pre-existing Condition Must Be Medically Documented but Documentation of Medical Condition and Rating for That Condition Can Come From Different Sources

Wetzel vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD87372 (Mo. App 2025)

FACTS: The claimant sustained his primary injury on March 23, 2018 which involved a crush injury to both legs which required surgery. Thereafter he never returned to work. He settled his case against the employer for 33.5% PPD to his left and right lower legs at the 160-week level. He proceeded to a Hearing against the Fund for PTD benefits based on a 1989 work injury. At the Hearing he testified that he suffered compression fractures to his spine at L1, L2, and L3 and following that accident he settled his case for 17.5% disability to the body referable to the low back. The Stipulation was admitted into evidence. He testified that he continued to suffer back pain, and he visited an orthopedics practice in September and October of 2017 to seek treatment for his low back. He did admit those records into evidence at the Hearing. The Fund objected to admission of those records, but it was overruled by the ALJ. The records included a summary of the claimant’s description of his 1989 low back workplace injury, the reported lingering effects of that injury, and treatment he reported receiving since that time. Also, it included a physical examination, x-ray, and MRI imaging which showed that the claimant did have chronic vertebral compression fractures along with moderate degenerative disc disease and other degenerative conditions. At these 2017 visits, physical therapy was recommended along with medications. The ALJ concluded that the Second Injury Fund was liable for perm total benefits. The Second Injury Fund appealed arguing that the claimant’s self-reported history communicated to doctors to support the low back disability related to the 1989 prior work injury did not establish that the claimant’s low back disability was “medically documented” as to qualify as a preexisting disability. The Commission agreed and reversed the decision of the ALJ. The claimant appealed.

HOLDING: The claimant argued that the medical records from September and October from 2017 contained much more than unsupported statements of preexisting disability in that it provided clear and undisputed evidence of the claimant’s preexisting back injury, including diagnosis and treatment and the court agreed. The Fund argued that this case was similar to Dubuc, and it was determined in that case that the claimant’s own statements about his prior hernias although recorded by doctors and medical records do not conclusively support that any doctors have medically documented the claimant’s preexisting condition. However, the Court distinguished this case noting that the statute nor Dubuc prohibit a doctor from providing a competent and admissible disability rating for self-reported preexisting disability without having reviewed medical documentation of that disability. Instead, as long as there is medical documentation of a preexisting disability and a disability rating for the same preexisting disability equaling 50 weeks or more, it is immaterial that the evidence comes from different sources. The Court went on to note that the records clearly document the claimant’s report of a prior back injury and there was also medical documentation of fractures including a physical exam and diagnostic testing and therefore the medical records qualify as medical documentation of the claimant’s preexisting low back injury. Therefore, it was determined that the claimant was PTD, and the Fund was liable for benefits.

On May 1, 2025, the Chief Administrative Law Judge of the Arkansas Workers’ Compensation Commission (“AWCC” or the “Commission”) held that the federal Airline Deregulation Act (“ADA”) preempts the AWCC’s authority to regulate reimbursement rates for air ambulance services provided to injured workers. Claimant Timothy Johnson, Emp., Respondent Ark. Dept. of Corr., Emp., Respondent Public Employee Claims Div., Carrier, Intervenor Survival Flight, Inc., No. H303158 (Ark. Work. Comp. Com., May 1, 2025). The ruling reversed an Order issued by a former Administrator of the AWCC’s Medical Cost Containment Division (“MCCD”) which compelled the Arkansas Public Employee Claims Division (“PECD”) to pay an air ambulance provider, Survival Flight, nearly double the amount that PECD had initially paid Survival Flight for the air ambulance services they provided to a state employee.  

Pursuant to A.C.A. §11-9-517 and Rule 30, the MCCD was established to implement a medical cost containment program. One of the MCCD’s primary functions is to review and resolve disputes regarding bills between carriers and providers. The AWCC’s Official Fee Schedule lists the maximum allowable payment for the majority of medical services provided to treat injured workers; however, in instances where the AWCC has not specified the maximum allowable fee for a medical service, the MCCD is responsible for determining what constitutes a reasonable reimbursement rate. For administrative review of disputed bills for air ambulance services, which are not addressed in the AWCC’s Official Fee Schedule, the MCCD has historically determined reasonable ambulance rates by conducting annual surveys of the rates charged by Arkansas emergency medical services (“EMS”) providers for individual procedure codes and determining the average charged for each code which constitutes the reasonable allowable amount.

At issue in this case was Survival Flight’s bill for the air ambulance services provided to the claimant after a compensable work accident. Because PECD’s bill review company had advised PECD to only pay 3x the Medicare reimbursement rate for the air ambulance services provided rather than the $44,130.66 that Survival Flight had charged them, Survival Flight asked the MCCD to perform an administrative review of the disputed bill and to determine the reasonable payable amount for the air ambulance services they had provided. After reviewing the amounts charged for each procedure code that was listed in Survival Flight’s bill and comparing those amounts with the average amounts charged by Arkansas EMS providers for the same procedure codes, the MCCD’s Administrator ruled that it was reasonable for PECD to be required to pay an additional $22,188.17 on top of the $21,273.00  they had already paid to Survival Flight for its ambulance services. When PECD filed an appeal of the Administrator’s Order, Judge Fine carefully considered the statutory preemption language in the ADA and opinions filed by the U.S. Supreme Court and the Eighth Circuit Court of Appeals in which they repeatedly found that state laws and state causes of action which attempted to regulate or otherwise impose limitations upon prices charged by air carriers for air transportation services were preempted under the ADA  because they effectively attempted to undo federal deregulation that Congress had enacted to promote efficiency, innovation, and low prices in the airline industry. After reviewing the law and the MCCD Administrator’s Order, Judge Fine ultimately found that the authority of the AWCC and MCCD to regulate the allowable rates for air ambulance services is preempted by the Airline Deregulation Act and therefore reversed the MCCD’s Administrative Review Order that attempted to compel PECD to pay an additional $22,188.17 to Survival Flight. 

NWCDN Ohio State Law Update - July 2025

Ohio Bureau of Workers’ Compensation Update

BWC Actions

On February 28, 2025, the Board of the Ohio BWC announced and approved a 6% reduction in private employer premiums, set to take effect on July 1, 2025, saving businesses an expected $60 million. This reduction would be the sixth straight reduction since Governor DeWine took office and the 16^th rate decrease in the last 17 years going back to 2008.  Overall, the average rate levels for the 257,000 private and public Ohio employers are at their lowest in over 60 years.

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.

House Bill 80, the Industrial Commission and Proposed Ombuds Office Rename, and House Bill 81 for the Ohio BWC, were both approved by the Ohio General Assembly as of June 26, 2025. The Ohio Industrial Commission is responsible for providing a process for fair and impartial resolutions of disputed workers compensation claims, adjudicating 85,000 claims annually. Funded through the Administrative Cost Fund surcharge applied to employers’ workers compensation premiums, their request of $107.4 million over the biennium is the lowest budget since FY 2018-19. The Bureau of Workers' Compensation provides insurance coverage for Ohio business and employees, serving 258,000 public and private employers across the state. Funded by employer premiums, Ohio has the 5th lowest workers' compensation premiums in the nation.

Ohio Judicial Decisions

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Allen Industries Inc. v. Industrial Commission, 2024-Ohio-5992 (December 23, 2024)

On October 30, 2018, Lewis Lands was working as a sign installer for Allen Industries, Inc., at a Meijer store construction site in Fremont, Michigan. Lands and a coworker were installing a large steel sign, which required welding steel uprights to a pole that had been placed in a trench. While kneeling at ground level and welding near the edge of the trench, the soil beneath Lands gave way, causing him to fall headfirst into the seven-foot-deep trench. Lands was momentarily buried upside down and received an electrical shock from the welder lead until his coworker shut off the power and helped him out of the trench using a ladder.

Lands filed a workers’ compensation claim which was allowed for the following injuries: anterior cruciate ligament tear left knee; unspecified sprain of right wrist; strain of muscle, fascia and tendon at neck level; sprain of medial collateral ligament of left knee; contusion of left knee; contusion of left front wall of thorax, left chest; unspecified sprain of left shoulder joint left shoulder; pulmonary embolism bilateral; deep vein thrombosis vein; fracture scaphoid/navicular, right wrist; fracture scaphoid/navicular with non-union, right wrist; sprain left acromioclavicular joint; low back strain; herniated disc C5-C6; L4-5 disc displacement with left radiculopathy; L5-S1 central disc displacement; herniated disc C5-C6; substantial aggravation of pre-existing arthritis, right wrist, left shoulder adhesive capsulitis.

On September 14, 2020, Lands filed an application for additional award for a violation of a specific safety requirement under Ohio Adm. Code 4123:1-3-13(D)(1), which mandates trenches over five feet deep must be shored, sloped, or otherwise protected where employees may be exposed to moving ground or cave-ins. The BWC’s Safety Violations Investigations Unit (SVIU) released a report on January 7, 2021, finding the trench was at least seven feet deep and lacked any shoring or bracing. Lands testified that he had raised concerns about the soil conditions but was instructed to continue working.

A Staff Hearing Officer (“SHO”) initially denied the VSSR application. In an order dated December 22, 2021, the SHO found sufficient evidence the soil was unstable but insufficient evidence to show Lands was working in the trench or whether the area where the ground gave way was the exposed face of the trench or an inclined earth surface.

Lands appealed, and on March 29, 2022, an SHO vacated the prior SHO order and set the application for VSSR award for a hearing. After the hearing, an SHO on April 18, 2023, granted the application for VSSR award, finding Ohio Amd. Code 4123:1- 3-13(D) applied and the site where Lands was injured constituted an excavation site because it was a manmade cavity and a trench due to its size. To address Allen Industries argument that Lands was not in the trench, the SHO specified he was reaching in the trench when the ground gave way, and Allen Industries’ not providing safety equipment was the proximate cause of Lands’s injuries.

Allen Industries filed a writ of mandamus in the Tenth District Court of Appeals and argued the regulation did not apply because Lands was not working inside the trench, and that Michigan’s safety code (Mich. Amd. Code 408.40901) governed the worksite and only required protections when employees were required to enter a trench.

The Tenth District Court rejected both arguments. It held the plain language of Ohio Adm. Code 4123:1-3-13(D)(1) applies to any employee exposed to moving ground or cave-ins, not just those inside a trench. The Court emphasized that other subsections of the rule explicitly refer to employees “working within” trenches, but subsection (D)(1) does not. The rule broadly applies to employees who may be exposed to moving ground or cave-ins and does not distinguish between those working inside the trench or those working at ground level near the trench. The court also found no irreconcilable conflict with Michigan law as Michigan’s rule only apples when employees are required to enter a trench while Ohio’s rule is more broadly applied. Because Lands was not required to enter the trench, both rules could be followed without conflict.

Loss of Use

State ex rel. Kreitzer v. Indus. Comm., 2025-Ohio-281 (January 30, 2025)

Rodney Kreitzer suffered a workplace eye injury in December of 1982 when a metal rod struck his right eye. His workers’ compensation claim was allowed for multiple conditions: contusion, visual loss, traumatic cataract, zonula dialysis, and traumatic mydriasis. In 1983, Kreitzer received a scheduled-loss award based on a finding of 28.5% uncorrected vision loss in the right eye.

In March 2008, Kreitzer filed a C-86 motion seeking an increase in the scheduled-loss award for his right eye. On April 29, 2008, he underwent surgery on his right eye, removing the lens, performed by Michael E. Snyder, M.D. On July 16, 2008, and at the request of the BWC, Kreitzer was examined by Richard Roebuck, M.D., who determined Kreitzer had 99% central vision loss in his right eye, but after adjusting for comparative vision, the injury caused a 34% uncorrected loss of vision. Based on this, the BWC issued an order granting an increased scheduled-loss award after finding a 33% uncorrected loss of vision, which Kreitzer did not appeal.

In 2011, the Supreme Court of Ohio considered the issue of whether the surgical removal of an eye lens in the course of treatment for a workplace injury entitles a worker to compensation for a total loss of vision pursuant to R.C. 4123.57(B) in State ex rel. Baker v. Coast to Coast Manpower, L.L.C., 129 Ohio St.3d 138, 2011-Ohio-2721. The Court declined to adopt a blanket rule that a claimant is automatically entitled to a total loss of vision award under R.C. 4123.57(B) whenever the natural lens or cornea is surgically removed due to workplace injury. Instead, the court held that it is proper to calculate the loss of vision based on the percentage of vision actually lost because of the injury but prior to any corrective surgery. The Court also clarified it was the loss of vision in Autozone and Parsec that formed the basis for the award of compensation for total loss of vision.

On March 15, 2022, Kreitzer filed another C-86 motion requesting an additional increase in his scheduled-loss award to reflect a total loss of vision in the right eye based on the Supreme Court of Ohio’s decisions in Autozone and Parsec. In support of his motion, Kreitzer did not submit a new medical report but relied on the same 2008 surgical report from Dr. Snyder. The BWC referred the motion to the Industrial Commission and recommended denial, noting the lack of medical evidence of new and changed circumstances. On June 10, 2022, a District Hearing Officer (“DHO”) denied the motion, concluding it was barred because the issue had already been adjudicated in 2008. Kreitzer appealed.

Kreitzer’s appeal of the June 10, 2022 denial from the DHO proceeded to a hearing before a Staff Hearing Officer (“SHO”), who issued an order on August 3, 2022, vacating the DHO’s order and denying Kreitzer’s C-86 motion filed on March 15. The SHO found Kreitzer failed to meet his burden of proof because he did not submit any new medical evidence supporting an increase in the degree of vision loss. The SHO noted the doctor’s report from 2008 already considered the 2008 surgical findings, including the lens removal, and the previously awarded 33% vision loss remained appropriate.

Kreitzer filed a complaint for a writ of mandamus with the Tenth District Court of Appeals, arguing the Industrial Commission should have granted his motion for total loss based on the legal significance of the lens removal surgery and the 2008 order was legally incorrect under State ex rel. Autozone, Inc. v. Indus. Comm., 2008-Ohio-541, and State ex rel. Parsec v. Agin, 155 Ohio App.3d 303, 2003-Ohio-6186 (10^th Dist.).

The court rejected Kreitzer’s argument and denied the writ. The court found Kreitzer’s March 2022 motion, which was the only decision properly before the Commission and the court, did not raise any claims about legal error or request continuing jurisdiction. The court emphasized the Industrial Commission is not required to reopen old awards without new and changed medical evidence, and here, Kreitzer relied entirely on a report from 2008 that had already been considered. The court explained that Autozone and Parsec do not create a blanket rule that surgical removal of a lens requires a finding of total vision loss. Rather, such determinations depend on medical evidence showing the extent of vision loss attributable to the injury, measured before corrective surgery. The Court distinguished these cases from Kreitzer’s situation by clarifying the court in Parsec relied on a finding that the claimant had sustained a total loss of vision prior to surgery. In Autozone, the court specifically held a physician’s finding that claimant was legally blind supported a determination for total loss.

To establish a claim for award under RC. 4123.57 (B), Kreitzer needed to submit medical evidence showing the amount of vision loss. Because Kreitzer submitted no new evidence to demonstrate an increase in loss, he was not entitled to an increase in scheduled-loss compensation for total loss of vision. The Industrial Commission’s denial was supported and the court overruled Kreitzer's objections.

Temporary Total Compensation

State ex rel. Camp v. Ferrellgas, Inc., 2025-Ohio-464 (February 13, 2025)

On June 13, 2017, Adam Camp sustained a work-related injury while lifting a propane cylinder during his employment. His workers’ compensation claim was initially allowed for the following physical conditions: bilateral inguinal hernia without obstruction or gangrene, not current; post op seroma inguinal area; and mononeuropathy ilioinguinal left lower extremity. Camp was awarded temporary total disability compensation (“TTD”) starting on June 14, 2017, and underwent hernia surgery in July.

In May 2019, Gururau Sudarshan, M.D., filed two MEDCO-14 forms indicating Camp could return to work part-time with restrictions and was a candidate for vocational rehabilitation. On August 7, 2019, Paul T. Hogya, M.D., issued a report finding Camp had reached maximum medical improvement for the allowed conditions and could perform light-duty work with restrictions. Following this report, Camp’s employer filed a C-86 motion to terminate TTD which was heard before the Industrial Commission. A District Hearing Officer (“DHO”) issued an order terminating TTD, effective October 8, 2019. Camp did not return to work or participate in vocational rehabilitation following this determination.

On November 12, 2020, Camp filed a motion to amend his claim to include the psychological conditions of unspecified depressive disorder and generalized anxiety disorder, following a report by Jennifer Stoeckel, Ph.D., who found Camp suffered from these conditions as a result of accident. The Commission allowed the additional conditions in October 2021. Dr. Stoeckel completed additional MEDCO-14 forms, certifying Camp’s inability to work due to the newly allowed conditions from November 2, 2020, through April 6, 2022. Camp subsequently filed a motion requesting TTD compensation for this period.

A DHO granted the request, finding the Camp was unable to work and suffering a wage loss as a direct result of the allowed psychological conditions. The DHO awarded TTD compensation from November 2, 2020, through March 23, 2022, and continuing with the submission of proof. Ferrellgas, Inc., appealed the decision, arguing Camp was not eligible for TTD because he had not been working prior to the onset of the psychological conditions and had failed to seek work or vocational rehabilitation after being found at MMI in 2019.

A Staff Hearing Officer (“SHO”) vacated the DHO’s order and denied TTD compensation. The SHO emphasized that Camp had not worked in any capacity since being found at MMI in 2019 and had not demonstrated that his failure to return to work or seek rehabilitation was due to the allowed conditions. The SHO concluded Camp’s wage loss beginning November 2, 2020, was due to his failure to return to the workforce, not the newly allowed conditions. The Commission refused further appeal and denied Camp’s request for reconsideration.

Camp filed a mandamus action, seeking an order compelling the Commission to award TTD compensation. He argued that under R.C. 4123.56(F), as amended in 2020, the Commission improperly applied the voluntary abandonment doctrine by focusing on his employment status prior to the onset of the psychological conditions. Camp relied on the Tenth District Court of Appeal’s decision in Autozone Stores, Inc. v. Indus. Comm., 2023-Ohio-633, which held that R.C. 4123.56(F) focuses on whether the claimant is unable to work due to the allowed conditions during the claimed period, without regard to prior employment status.

The magistrate, relying on Autozone, focused on whether Camp was unable to work during the requested period of TTD compensation due to his allowed psychological conditions. The magistrate emphasized once Camp became medically unable to work due to those conditions, the reasons he had not been working prior to that point, such as his return to work after reaching MMI for his allowed physical conditions, were irrelevant. The magistrate concluded Camp’s inability to work was directly caused by his psychological conditions and recommended granting writ of mandamus to award TTD.

However, while Camp’s case was pending, the Ohio Supreme Court reversed the Tenth District Court of Appeal’s decision in Autozone, clarifying that R.C. 4123.56(F) requires a claimant to show the inability to work is not only caused by the allowed conditions but also not due to reasons unrelated to the injury. The Court stated the inability to work must be directly caused by an impairment arising from an injury and not caused by reasons unrelated to the allowed injury. If an injured worker is not employed for reasons unrelated to their approved injury, the worker is not entitled to wage loss compensation, even if the injury later causes a new or additional disability.

Applying the Supreme Court’s interpretation, the Tenth District found that although Camp’s psychological conditions rendered him unable to work starting November, 2020, he had already been out of the workforce for over a year due to reasons unrelated to those conditions. The court concluded Camp’s wage loss was not a direct result of the allowed psychological conditions but rather his failure to return to work after reaching MMI for his physical injuries. Accordingly, the court denied the writ of mandamus, holding Camp was not entitled to TTD compensation because his wage loss stemmed from reasons unrelated to the allowed conditions in the claim.

© Copyright 2025 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

Judge Julie A. Martin Elected Presiding Judge of Nebraska Workers’ Compensation Court

The Nebraska Workers’ Compensation Court recently announced that Judge Julie A. Martin has been elected by her fellow judges to serve as the Court’s next presiding judge. Her two-year term will begin on July 1, 2025, and run through June 30, 2027, pending official approval by the Nebraska Supreme Court.

Judge Martin has served on the Nebraska Workers’ Compensation Court since 2015 and was most recently retained by Nebraska voters in the November 2024 election. The presiding judge is elected every two years by the court’s six judges, each of whom is initially appointed by the governor and then stands for retention by the electorate in six-year terms.

As presiding judge, Judge Martin will oversee the administrative functions of the court and help ensure the effective operation of Nebraska’s workers’ compensation system — which provides crucial protections and benefits for employees who suffer work-related injuries or illnesses.

For more information about the Nebraska Workers’ Compensation Court or to learn more about workers’ compensation in Nebraska, visit www.wcc.ne.gov or call the court’s Information Line at 402-471-6468 or 800-599-5155 (toll free).

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.

• Maximum weekly compensation rate: $1,172

• Minimum weekly compensation rate: $322

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 JUDGE 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.

 MEMORANDUM 2024-05

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.

 CASE LAW

 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.

 3. Future Medical:

               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.