By: Jigar S. Desai

In a February 26, 2026, opinion, the Illinois Appellate Court, Fifth District, Workers’ Compensation Commission Division, addressed a question of first impression under the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq.: whether a claimant who sustains a single injury to one body part may receive concurrent awards under both the scheduled loss provisions of §8(e) and the person-as-a-whole provisions of §8(d)(2). Azcon Metals v. Illinois Workers' Compensation Commission, 2026 IL App (5th) 250301WC. The court held that a claimant must elect one remedy or the other for the same injury, and that an employer who made a voluntary payment under §8(e) is entitled to a credit against a subsequent award under §8(d)(2).

The court affirmed the Commission’s award of permanent partial disability benefits under §8(d)(2) but reversed the Commission’s denial of credit to the employer for benefits previously paid under §8(e).

The decision provides important guidance on the interplay between §§8(e) and 8(d)(2), the election-of-remedies doctrine in workers’ compensation, and the credit principles that apply when employers make prompt voluntary payments under the Compensation Act.

Factual Background

Tom Snyder sustained an injury to his right foot and leg while working for Azcon Metals on March 19, 2020. His right foot was crushed between two rail cars. Snyder initially underwent surgery that resulted in the amputation of four toes on his right foot. However, the following day, he underwent a second surgery that resulted in the amputation of his right leg at the mid-tibia, below the knee.

Following the surgeries, Snyder was fitted for a transtibial prosthetic and participated in physical therapy, work hardening, and a functional capacity evaluation. The evaluation indicated that he could perform work at the heavy physical demand level but had decreased tolerance for prolonged standing and walking on uneven surfaces. Snyder participated in vocational rehabilitation and expressed his intent to pursue employment in heating, ventilation, and air conditioning or in the construction industry, acknowledging that those fields may require traversing uneven ground but believing he could manage the slower pace of such work.

Following the work injury, the employer promptly paid Snyder $97,010.30 in permanent partial disability benefits for the scheduled loss of his right foot pursuant to §8(e)(11) of the Compensation Act. The payment was made in two installments: $60,716.19 on April 20, 2020, and $36,294.11 on April 28, 2022, calculated at 167 weeks using a stipulated minimum statutory amputation rate of $580.90.

Procedural History

On April 17, 2020, Snyder filed an application for adjustment of claim. The matter proceeded to an arbitration hearing on January 27, 2023. At the outset of the hearing, the parties stipulated that the employer had paid, and was entitled to credit for, $17,438.31 in temporary total disability benefits and $42,822.94 in maintenance benefits. The parties further stipulated that the employer had paid $97,010.30 in permanent partial disability benefits for the scheduled loss of Snyder’s right foot under §8(e)(11), but they disagreed as to whether the employer was entitled to a credit for that payment against any additional permanent partial disability award.

Snyder waived his right to a wage differential award under §8(d)(1). The arbitrator awarded all requested medical expenses and, after considering the factors set forth in §8.1b(b)(v) of the Compensation Act, found that Snyder sustained permanent partial disability to the extent of 65 percent loss of use of the person as a whole under §8(d)(2). The arbitrator denied the employer’s request for a credit for the §8(e)(11) payment against the §8(d)(2) award.

On review, the Commission unanimously reduced the §8(d)(2) award from 65 percent to 45 percent loss of use of the person as a whole, finding that Snyder was young and remained capable of physically demanding work. The Commission, however, agreed with the arbitrator that the employer was not entitled to a credit. The Commission characterized the credit issue as one of first impression, concluded that §8(d)(2) did not permit an offset for previously paid amputation benefits, and noted that the employer had paid benefits under the incorrect section — §8(e)(11) (loss of foot, 167 weeks) rather than §8(e)(12) (amputation below the knee, compensated as loss of a leg at 215 weeks).

The circuit court affirmed the Commission’s decision in its entirety. The employer appealed to the appellate court.

The Appellate Court’s Analysis

Framing the Issue

As a threshold matter, the appellate court corrected the framing of the employer’s first argument on appeal. The employer had argued that the Commission erred by awarding benefits under both §§8(e) and 8(d)(2). The court clarified that the Commission did not “award” benefits under §8(e); rather, the employer had made a voluntary payment under that section prior to arbitration. The Commission only awarded benefits under §8(d)(2) and separately considered whether the employer was entitled to a credit. Accordingly, the court reframed the central issue as whether the Commission erred by denying the employer a credit for its voluntary §8(e) payment against the §8(d)(2) award.

Standard of Review

The court noted that while the Commission’s determination of whether an employer is entitled to a credit is ordinarily reviewed for abuse of discretion, the Commission in this case interpreted statutory provisions and concluded that §8(d)(2) did not permit an offset. Because the dispute involved statutory interpretation, the court applied de novo review.

Election of Remedies: Section 8(e) Versus Section 8(d)(2) for a Single Injury

The core of the court’s analysis addressed the interplay between §§8(e) and 8(d)(2). The court acknowledged the tension between the two provisions. Section 8(e) provides that a claimant who receives a scheduled loss “shall not receive any compensation under any other provisions of this Act.” 820 ILCS 305/8(e). Section 8(d)(2), on the other hand, states that compensation awarded under that subsection “shall not take into consideration injuries covered under paragraphs (c) and (e)” and that such compensation “shall not affect the employee’s right to compensation payable under paragraphs (b), (c) and (e) . . . for the disabilities therein covered.” 820 ILCS 305/8(d)(2).

The Commission had relied on the language of §8(d)(2) to conclude that recovery under §8(e) should have no effect on an award under §8(d)(2), and vice versa, effectively permitting concurrent awards and denying the employer any credit. The circuit court agreed, adding that any ambiguity should be resolved in the claimant’s favor under the principle of liberal construction.

The appellate court disagreed. In its view, the language of §8(e) clearly precluded a claimant from recovering under both sections for the same injury to one body part. The court interpreted the language of §8(d)(2) as permitting an election — not a concurrent award — for a single injury. Specifically, the court concluded that §8(d)(2) permits a claimant to elect an award under either §8(e) or §8(d)(2) for an injury to a single body part, while also permitting recovery under both sections when a claimant sustains injuries to multiple, separate body parts in the same work accident.

Consistency with Prior Caselaw

The court grounded its conclusion in several lines of precedent. First, the court analogized to established caselaw holding that a claimant who sustains a scheduled loss may elect between a scheduled loss award under §8(e) and a wage differential award under §8(d)(1), but may not receive both. Citing Payetta v. Industrial Commission, 339 Ill.App.3d 718, 791 N.E.2d 682, 274 Ill.Dec. 590 (2d Dist. 2003), and General Electric Co. v. Industrial Commission, 89 Ill.2d 432, 433 N.E.2d 671, 60 Ill.Dec. 629 (1982), the court noted that this election principle reflects the understanding that an injured party will choose the award most likely to approximate the earnings loss the Compensation Act is designed to compensate. The Commission had distinguished those cases on the basis that §8(d)(1) contains an explicit exclusion for §8(e) claims, whereas §8(d)(2) does not. The appellate court acknowledged the difference in statutory language but concluded that the exclusionary language in §8(e) itself — prohibiting compensation under “any other provisions of this Act” (820 ILCS 305/8(e)) — resolved the issue.

Second, the court observed that both wage differential awards under §8(d)(1) and person-as-a-whole awards under §8(d)(2) serve to compensate injured workers for reduced earning capacity under certain circumstances. Given this functional similarity, the court concluded that the rationale prohibiting dual recovery under §§8(e) and 8(d)(1) applies equally to §§8(e) and 8(d)(2) when a single injury to one body part is at issue.

Third, the court distinguished its prior decisions in Beelman Trucking v. Illinois Workers’ Compensation Commission, 233 Ill.2d 364, 909 N.E.2d 818, 330 Ill.Dec. 796 (2009), and American Coal Co. v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 230815WC, 248 N.E.3d 493, 478 Ill.Dec. 868. In those cases, the claimants had sustained injuries to multiple body parts during a single work accident, warranting additional compensation under the Compensation Act. In Beelman Trucking, the supreme court permitted concurrent awards under §§8(e)(18) (loss of legs) and 8(e)(10) (loss of arm), reasoning that denying compensation beyond two members would leave additional losses uncompensated. In American Coal, this court extended that reasoning to permit concurrent awards under §§8(e)(18) and 8(d)(2) for nonscheduled injuries sustained in addition to the scheduled losses. The appellate court found those decisions consistent with its holding in Azcon Metals, noting that the present case involved only a single injury to one body part, and that allowing concurrent awards would result in impermissible double recovery.

Employer Entitled to Credit for Voluntary Payment

Having concluded that the claimant was entitled to compensation under only one statutory provision for his single injury, the court turned to the credit issue. The court held that the Commission erred by denying the employer’s credit request. The employer had promptly and voluntarily paid benefits under §8(e) following the work accident, providing the claimant with immediate financial relief. When the claimant subsequently elected to receive benefits under §8(d)(2), the Commission should have credited the employer for its prior voluntary payments.

The court cited World Color Press v. Industrial Commission of Illinois, 125 Ill.App.3d 469, 466 N.E.2d 270, 80 Ill.Dec. 818 (5th Dist. 1984), for the proposition that an employer may receive credit for overpayments absent a statutory bar, and Salisbury v. Illinois Workers’ Compensation Commission, 2017 IL App (3d) 160138WC, 78 N.E.3d 979, 413 Ill.Dec. 703, for the policy principle that encouraging prompt and voluntary payments of benefits furthers the purpose of the Compensation Act. The court emphasized that denying credit for good-faith payments would encourage administrative delays as employers attempt to resolve every ambiguity before paying benefits — a result inconsistent with the Compensation Act’s primary purpose of providing employees with prompt and definite compensation.

Practical Implications

This decision establishes several important principles for practitioners on both sides of the bar.

For employers and carriers, the decision confirms that when a single injury to one body part is involved, a claimant must elect between a scheduled loss award under §8(e) and a person-as-a-whole award under §8(d)(2). The employer who promptly and voluntarily pays benefits under §8(e) will be entitled to a credit against a subsequent §8(d)(2) award. This holding should encourage prompt payment of scheduled benefits, as employers need not fear that early payments will go uncredited if the claimant later elects a different form of permanent disability compensation. Practitioners should carefully document voluntary payments, including the statutory section under which they are made, the calculation methodology, and the dates of payment.

For claimants, the decision preserves the right to elect the more favorable remedy — but it forecloses the possibility of receiving both a scheduled loss award and a person-as-a-whole award for the same injury. Claimants and their counsel should carefully evaluate which remedy produces the greater benefit before making an election, particularly in cases involving amputations or other injuries that may qualify under both sections. The decision also reaffirms that concurrent awards remain permissible when a claimant sustains injuries to multiple, separate body parts in a single work accident, consistent with the rationale of Beelman Trucking, supra, and American Coal, supra.

Finally, the employer’s miscalculation of the scheduled loss payment in this case — paying 167 weeks for loss of a foot under §8(e)(11) when the below-knee amputation should have been compensated as a loss of a leg at 215 weeks under §8(e)(12) — serves as a reminder that correct classification of the injury under the appropriate subsection of §8(e) is critical. An incorrect classification may result in an underpayment that could affect the credit calculation or expose the employer to additional proceedings.

By: Kisa P. Sthankiya

The claimant in Aim National Lease v. Illinois Workers’ Compensation Commission, 2026 IL App (1st) 250494WC-U, ¶8, worked as a rental representative conducting “360 inspections” of trucks, which required walking around and climbing in and out of vehicles. On August 13, 2019, she tripped over a parking block during an inspection and fell, testifying that she felt throbbing pain in her left lower leg and shooting pain from her heel to her toes. 2026 IL App (1st) 250494WC-U at ¶9.

She was treated at Working Well Occupational Health, diagnosed with contusions and left foot and ankle sprains, and placed on light-duty restrictions. 2026 IL App (1st) 250494WC-U at ¶10. Although X-rays showed no fractures, she continued to experience swelling, antalgic gait, and pain and was referred to physical therapy. 2026 IL App (1st) 250494WC-U at ¶11.

Beginning in September 2019, Dr. James Hong, a podiatrist, treated her for persistent ankle pain, numbness, and tingling, diagnosing ankle sprain and neuritis, and prescribed therapy, medication, injections, and work restrictions. 2026 IL App (1st) 250494WC-U at ¶¶12 – 14. At subsequent visits in September and October 2019, the claimant continued to report sharp, shooting pain and neuritis-type symptoms, though some improvement was noted with gabapentin and therapy. 2026 IL App (1st) 250494WC-U at ¶¶13 – 14. Dr. Hong administered a steroid injection, adjusted medications, and maintained work restrictions while documenting ongoing nerve pain and reduced range of motion. 2026 IL App (1st) 250494WC-U at ¶14.

From October 24 through October 28, 2019, the claimant participated in a 30-mile cancer walk where participants had to walk 10 miles a day. 2026 IL App (1st) 250494WC-U at ¶18. The claimant testified that she did some walking during the event but spent most of the weekend riding around in a golf cart. Id.

On October 29, 2019, the claimant went to a physical therapy appointment and reported that she was slightly worse than the week prior due to being out of town but she felt 76-to-80-percent better and some improvements. 2026 IL App (1st) 250494WC-U at ¶19. The following therapy visit on October 30, 2019, she again noticed increased pain in the left heel since the weekend but also showed progress with strength, range of motion, flexibility, and function. 2026 IL App (1st) 250494WC-U at ¶20.

On November 21, 2019, the claimant followed up with Dr. Hong and complained of numbness, tingling, and shooting pain radiating from her ankle to her toes and calf. 2026 IL App (1st) 250494WC-U at ¶21. Dr. Hong’s examination revealed positive Tinel’s and Valleix’s signs in the tarsal tunnel, and he diagnosed neuritis/neuropraxia, left foot sprain, and possible plantar fasciitis. 2026 IL App (1st) 250494WC-U at ¶¶22 – 23. Because her symptoms were worsening and appeared structural, he ordered MRIs, increased medication, and modified restrictions. 2026 IL App (1st) 250494WC-U at ¶23.

MRIs of the left ankle were taken on December 14, 2019, and interpreted as largely negative, showing normal ligaments and tendons with only minor findings such as mild arthritis in the first MTP joint. 2026 IL App (1st) 250494WC-U at ¶24.

At the employer’s request, the claimant underwent an independent medical exam (IME) on December 18, 2019, with orthopedic surgeon Dr. Kamran Hamid. 2026 IL App (1st) 250494WC-U at ¶25. He diagnosed ankle sprain and instability related to the work accident and suggested the claimant may have had complex regional pain syndrome (CRPS) or sympathetic mediated pain, though evaluation was complicated by medication use. Id. Dr. Hamid considered prior treatment reasonable, found that the claimant was not at maximum medical improvement (MMI), and recommended further MRI imaging due to poor quality of the December 14 images. 2026 IL App (1st) 250494WC-U at ¶26.

On December 19, 2019, Dr. Hong expressed concern about early CRPS and referred the claimant for pain management, recommending possible dorsal root ganglion (DRG) treatment while maintaining work restrictions and agreed with new MRI imaging. 2026 IL App (1st) 250494WC-U at ¶27.

Additional MRIs of the left tibia/fibula, left ankle, and foot in January 2020 showed mild edema, fluid, and bursitis but no major abnormalities. 2026 IL App (1st) 250494WC-U at ¶28. Dr. Hong continued to suspect early CRPS and recommended pain management due to persistent nerve pain and limited relief from medication. 2026 IL App (1st) 250494WC-U at ¶¶29 – 30.

In contrast, Dr. Kenneth Candido, who conducted an IME on January 28, 2020, opined that the claimant did not have CRPS but instead had tarsal tunnel syndrome and that she could return to full-duty work without restrictions. 2026 IL App (1st) 250494WC-U at ¶31. Based on his opinion, the employer denied further pain management treatment. Id.

With the employer’s consent, the claimant started treatment with Dr. Hamid in March 2020. 2026 IL App (1st) 250494WC-U at ¶32. He expressed concern of CRPS versus sympathetic mediated nerve pain and recommended pain clinic consultation, which the employer refused to approve. Id.

In April 2020, during a telemedicine visit with Dr. Hamid, claimant reported an increase in nerve pain. He reviewed the January 2020 MRIs as showing ligament tears and recommended surgical reconstruction but cautioned that pain management was necessary first due to likely CRPS exacerbation. 2026 IL App (1st) 250494WC-U at ¶33.

A third IME was performed by orthopedic foot specialist, Dr. Anand Vora, in May 2020. 2026 IL App (1st) 250494WC-U at ¶34. He found no instability or CRPS and concluded the claimant had reached MMI with only a resolved contusion, releasing her to full duty without further treatment. Id. Dr. Vora questioned the claimant’s reported symptoms based in part on records referencing her participation in the cancer walk in October 2019. 2026 IL App (1st) 250494WC-U at ¶35.

Meanwhile, the claimant began treatment with pain specialist Dr. Thomas Pontinen, who disagreed with the tarsal tunnel diagnosis and supported a diagnosis of CRPS based on symptom distribution and examination findings. 2026 IL App (1st) 250494WC-U at ¶36. After a lumbar sympathetic block in May 2020 resulted in approximately 90-percent pain relief, Dr. Pontinen concluded that the improvement strongly supported CRPS rather than tarsal tunnel syndrome. 2026 IL App (1st) 250494WC-U at ¶38.

The employer scheduled claimant for a reexamination with Dr. Candido in June 2020 that the claimant refused to attend. 2026 IL App (1st) 250494WC-U at ¶37. A meeting was held by the parties with the arbitrator, and, according to the employer, the arbitrator opined during that meeting that the IME should not proceed. Id.

Dr. Candido performed a record review in August 2020 and opined that claimant had sustained a neuropraxia of the posterior tibial nerve. 2026 IL App (1st) 250494WC-U at ¶39.

Dr. Hamid maintained his CRPS diagnosis and recommendation for surgery after pain control. 2026 IL App (1st) 250494WC-U at ¶40. Throughout 2020 and 2021, the claimant, under Dr. Pontinen’s care, continued lumbar sympathetic blocks with temporary relief. 2026 IL App (1st) 250494WC-U at ¶41.

In April 2021, Dr. Candido reaffirmed his view that no CRPS was present and that no further treatment or restrictions were necessary upon an updated examination and reviewing surveillance video. Id.

In January 2022, Dr. Matthew Jaycox, a pain management specialist who agreed with the CRPS diagnosis and noted that although an anterior talofibular tear had been confirmed, surgery was not feasible due to CRPS. 2026 IL App (1st) 250494WC-U at ¶42. He recommended neuromodulation treatment and referred the claimant to Dr. William Landphair to consider a DRG stimulator. Id. After consultation, the claimant proceeded with a DRG trial in March 2022. 2026 IL App (1st) 250494WC-U at ¶43.

The claimant reported greater than 80-percent pain relief following the trial and elected to proceed with permanent implantation. 2026 IL App (1st) 250494WC-U at ¶44. The permanent DRG was implanted on March 23, 2022, and subsequent follow-ups documented 90-percent or greater relief, decreased swelling, and significant functional improvement. 2026 IL App (1st) 250494WC-U at ¶45. By August 29, 2022, her pain had decreased to two out of ten, she was active with walking and swimming, and she continued to report substantial improvement. 2026 IL App (1st) 250494WC-U at ¶46.

The arbitrator found that the conditional ill-being was related and awarded medical expenses and prospective medical treatment. 2026 IL App (1st) 250494WC-U at ¶3. The employer appealed the decision to the Commission. The Commission denied some medical bills due to no evidence of supporting medical records. 2026 IL App (1st) 250494WC-U at ¶4. They affirmed the arbitrator’s denial to admit certain documents offered by the employer and denying a fourth IME. Id. The Circuit Court of Cook County subsequently affirmed the decision on appeal. 2026 IL App (1st) 250494WC-U at ¶5.

At trial, Arbitrator Amarillo found that the claimant proved her left foot and ankle condition was causally related to the August 13, 2019, work accident and credited the opinions of her treating physicians, concluding that the DRG implant’s success supported causation and the necessity of treatment. 2026 IL App (1st) 250494WC-U at ¶47. The arbitrator also found the claimant’s testimony credible and supported by objective findings, rejecting any suggestion that she was exaggerating her symptoms. 2026 IL App (1st) 250494WC-U at ¶48.

The arbitrator determined that the opinions of Dr. Candido and Dr. Vora were not credible or persuasive, noting inconsistencies with the medical evidence and treating physicians’ findings. 2026 IL App (1st) 250494WC-U at ¶¶49 – 50. The arbitrator specifically found Dr. Vora’s malingering theory unsupported, criticized his selective reliance on the record, and remarked negatively on his deposition demeanor. 2026 IL App (1st) 250494WC-U at ¶¶50 – 51. The arbitrator further rejected the employer’s experts’ assumption that the claimant had walked 30 miles shortly after cancer surgery. 2026 IL App (1st) 250494WC-U at ¶52.

The arbitrator held that the claimant’s medical treatment was reasonable and necessary and ordered the employer to pay the submitted medical bills paid by claimant’s private insurer pursuant to §§8(a) and 8.2 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq. 2026 IL App (1st) 250494WC-U at ¶53. He also ordered the employer to authorize ongoing care, including Lyrica and maintenance of the DRG stimulator, but declined to award penalties or fees. 2026 IL App (1st) 250494WC-U at ¶¶54 – 55.

On appeal, the Commission modified the decision by disallowing certain unsubstantiated medical bills but otherwise affirmed, finding the remaining medical expenses reasonable, necessary, and causally related to the accident. 2026 IL App (1st) 250494WC-U at ¶56. The Commission also ordered payment for prospective care related to the DRG and Lyrica. 2026 IL App (1st) 250494WC-U at ¶57.

The Commission rejected the employer’s argument that it had been improperly denied a §12 IME, noting the employer had invited the arbitrator’s guidance and that the record did not support a finding of error. 2026 IL App (1st) 250494WC-U at ¶¶58 – 59. The Commission affirmed and adopted the arbitrator’s decision in all other respects. 2026 IL App (1st) 250494WC-U at ¶60.

The employer sought judicial review, and the Circuit Court of Cook County confirmed the Commission’s decision. 2026 IL App (1st) 250494WC-U at ¶61. The circuit court rejected the employer’s argument that it was not liable for group health insurer-paid “billed charged” on a “subrogation lien statement” because some of the charges were not substantiated by any medical bills from the claimant’s healthcare provider. 2026 IL App (1st) 250494WC-U at ¶62. The circuit court rejected the employer’s argument that it is liable to pay the lesser of the healthcare provider’s actual charges, the negotiated rate, or the amount identified in the fee schedule provided in §8.2 of the Act, 820 ILCS 305/8.2. Id. The employer maintained that such a determination cannot be made unless the healthcare providers’ bills are produced at the time of trial. Id.

1. Causation and Intervening Injury

The first issue the employer raised was regarding whether the October 2019 breast cancer walk that the claimant participated in was an independent intervening cause breaking the chain of causation.

The court noted that every natural consequence flowing from a work-related injury is compensable unless an independent intervening accident completely breaks the chain of causation between the original injury and the subsequent condition, as recognized in National Freight Industries v. Illinois Workers’ Compensation Commission, 2013 IL App (5th) 120043WC, ¶26, 993 N.E.2d 473, 373 Ill.Dec. 167. 2026 IL App (1st) 250494WC-U at ¶69. To relieve an employer of liability, the intervening cause must entirely sever the causal connection rather than merely contribute to the claimant’s condition, as explained in Global Products v. Workers’ Compensation Commission, 392 Ill.App.3d 408, 411, 911 N.E.2d 1042, 1046, 331 Ill.Dec. 812 (1st Dist. 2009). Id. A non-work-related accident that only aggravates a weakened condition does not break the causal chain, and other incidents that aggravate the claimant’s condition are legally irrelevant, as held in Teska v. Industrial Commission, 266 Ill.App.3d 740, 640 N.E.2d 1, 3, 203 Ill.Dec. 574 (1st Dist. 1994), and Vogel v. Industrial Commission, 354 Ill.App.3d 780, at 821 N.E.2d 807, 813, 290 Ill.Dec. 495. Id. So long as a “but-for” relationship exists between the original work injury and the subsequent condition, the employer remains liable, consistent with Global Products, supra, 911 N.E.2d at 1046. Id.

The court upheld the Commission’s rejection of the employer’s argument that the claimant’s participation in a breast cancer charity walk constituted an independent, intervening cause of her subsequent left leg, foot, heel, and ankle conditions. 2026 IL App (1st) 250494WC-U at ¶72. They noted that the Commission found implausible the employer’s assertion that the claimant walked 30 miles one week after major breast cancer surgery, crediting her testimony that she did not complete the full distance and spent most of the event riding in a golf cart due to postoperative pain. Id. Because the Commission found the claimant credible, the court noted it was entitled to rely on her testimony regarding the extent of her activity. Id.

Although the employer pointed to therapy and treatment records reflecting a temporary increase in heel pain and new clinical findings after the event, the court concluded that this evidence did not compel a finding of an independent intervening cause. 2026 IL App (1st) 250494WC-U at ¶¶73 – 74. The post-event therapy records also documented substantial overall improvement, including increased strength, range of motion, ambulation tolerance, and decreased pain frequency and intensity. 2026 IL App (1st) 250494WC-U at ¶74.

The court further emphasized that neither the medical records nor expert testimony supported a finding that the charity walk broke the causal chain. 2026 IL App (1st) 250494WC-U at ¶75. The treating physicians consistently attributed the claimant’s lower extremity conditions, including CRPS, to the August 13, 2019, work accident. Id. The employer’s reliance on testimony that plantar fasciitis could be aggravated by prolonged standing was insufficient. Id.

Even assuming there had been a post-walk aggravation, the court held that such evidence, at most, demonstrated a contributing aggravation of a preexisting work-related injury — not a complete break in causation. 2026 IL App (1st) 250494WC-U at ¶76. The record contained no medical testimony establishing that walking alone was the sole cause of her disabling conditions. Id. To the contrary, citing Vogel the court held that the evidence supported a “but-for” causal relationship between the original work injury and the claimant’s subsequent condition, and thus the employer failed to establish an independent intervening cause. Id.

2. Medical Bills and Group Health Payments

The most important issue on appeal was regarding the medical bill award by the Commission.

First, the employer argued that the Commission erred in awarding the claimant medical expenses for physical therapy treatments related to her left shoulder. 2026 IL App (1st) 250494WC-U at ¶78. The employer correctly noted that the claimant’s case involved injuries to her left lower leg, foot, ankle, and heel — not her shoulder. Id. Nevertheless, the Commission awarded payment for several physical therapy sessions in November and December 2019 that appeared to involve shoulder treatment alone. Id. The court agreed that these shoulder-related expenses should not have been awarded. Id.

The employer also argued that the Commission improperly awarded certain medical expenses despite the absence of supporting medical bills in the record. 2026 IL App (1st) 250494WC-U at ¶79. After the employer refused to pay for pain management treatment following Dr. Candido’s January 2020 IME report, the claimant’s private group health insurer, Blue Cross Blue Shield (BCBS), began covering those treatments. 2026 IL App (1st) 250494WC-U at ¶80. The claimant introduced medical bills from her providers and a “Consolidated Statement of Benefits” from BCBS covering medical treatments from January 5, 2021, through November 1, 2022. Id. The employer asserted that BCBS prepared this document in connection with a subrogation lien claim. Id.

The “Consolidated Statement of Benefits” listed total amounts billed for each date of service but did not itemize the specific treatments performed. 2026 IL App (1st) 250494WC-U at ¶81. The document reflected that BCBS paid a total of $208,342.16 in benefits, including approximately $169,000 to Rush Surgicenter for services on March 23, 2022, approximately $30,000 to Rush Oak Park Hospital for services on March 10, 2022, and payments for anesthesiology services on both dates. Id. After determining that the claimant’s medical expenses were reasonable and necessary, the Commission awarded $204,559.62 — the amount identified in the BCBS statement — minus certain medical bills lacking corresponding treatment records. Id.

The employer contended that this award was improper because the BCBS statement showed only amounts BCBS claimed to have paid for unspecified services and was unsupported by the medical providers’ actual bills. 2026 IL App (1st) 250494WC-U at ¶83. The employer argued that without the providers’ actual medical bills in evidence, there was a failure of proof and no basis for liability for the bill. Id. The employer further maintained that, even if it were liable for some treatments, the actual bills were necessary to determine the correct amount owed under §8(a) of the Act. 2026 IL App (1st) 250494WC-U at ¶84. According to the employer, §8(a) requires payment at the lesser of the negotiated rate, the provider’s charge, or the statutory fee schedule rate under §8.2, and such a comparison could not be made without the actual bills. Id.

The court rejected these arguments. 2026 IL App (1st) 250494WC-U at ¶85. It explained that §8(a) requires payment at the negotiated rate if applicable, or otherwise at the lesser of the provider’s charge or the fee schedule rate. Id. Because BCBS had already paid the providers, the amount BCBS had paid constituted the “negotiated rate” under §8(a), which the employer was required to pay. Id. The court noted that analysis of actual charges versus the fee schedule is only necessary when the medical bills have not yet been paid by a third-party insurer. Id.

However, the court identified a discrepancy between the BCBS “Consolidated Statement of Benefits” and a separate BCBS spreadsheet that itemized charges and payments. 2026 IL App (1st) 250494WC-U at ¶86. Although both documents reflected the same amounts billed by providers, they listed dramatically different amounts paid by BCBS. Id. For example, while both documents showed Rush Surgicenter billed $169,119.60 on March 23, 2022, the Consolidated Statement recorded a payment of $168,526.34, whereas the spreadsheet listed only $50,059.40 as paid. Id. The Commission did not address this discrepancy, and the claimant did not explain it. Id.

Accordingly, the court remanded the matter to the Commission to resolve the discrepancy and determine the actual amount BCBS paid for the services at issue. 2026 IL App (1st) 250494WC-U at ¶87. The court held that only the amount actually paid by BCBS should be awarded. Id.

3. Arbitrator’s Actions Regarding the Employer’s Fourth IME Request

The employer contended that the arbitrator improperly interfered with its statutory right to obtain a fourth IME on June 23, 2020, by ruling that the examination should not proceed. 2026 IL App (1st) 250494WC-U at ¶89. The court rejected this argument, noting that the employer itself invited the arbitrator’s involvement by requesting guidance after the claimant refused to attend the scheduled IME. 2026 IL App (1st) 250494WC-U at ¶90. In an email to the arbitrator, the employer’s counsel expressly asked for a prompt discussion and indicated that “if that is what you decide,” thereby submitting the issue to the arbitrator for determination. Id. Having requested the arbitrator’s opinion, the employer could not later claim error based on that involvement. Id.

The court further observed that no transcript of the discussion existed and as a result, the record did not permit meaningful review of the alleged procedural error. 2026 IL App (1st) 250494WC-U at ¶91.

The court remanded the case back to the Commission to disallow any charges for treatments to the claimant’s left shoulder and to determine the amount that BCBS paid the claimant’s healthcare providers for medical services relating to the claimant’s work-related injuries, and to award the claimant that amount. 2026 IL App (1st) 250494WC-U at ¶93. The remainder of the Commission was affirmed.

PRACTICE POINTER: Proving and Defending Medical Bills When Group Insurance Has Paid

Ultimately, the significance of this case is the second issue the court addressed on appeal. This case reinforces that in group-health-paid claims, the dispositive figure is the actual negotiated amount paid. Additionally, the record should be clear to either sustain or defeat a medical expense award.

This case underscores the evidentiary and strategic importance of properly substantiating medical expenses when a claimant’s group health insurer has made payments for medical bills. For petitioner’s counsel, reliance on a consolidated insurer statement alone may be insufficient if discrepancies exist between the consolidated statement of benefits reflecting a paid amount and the actual medical bills. Practitioners should ensure the record clearly establishes (1) the services rendered via medical records, (2) medical bills, and (3) the actual amount paid for medical treatment when a group health insurer has made payments.

For respondent’s counsel, it is important to scrutinize the medical bills to the actual medical treatment records for discrepancies to determine what they are obligated to pay under the award. Further, this decision highlights that once a group health insurer has paid medical providers at a negotiated rate, the employer is obligated to pay the actual amount paid for the medical service and not the amount paid listed on the Consolidated Statement of Benefits in the lien itemization. If the medical bills remain unpaid, the fee schedule would apply. Respondent’s counsel should scrutinize the Consolidated Statement of Benefits and the actual medical bill to determine the accurate amount paid. If the petitioner fails to admit this information into evidence, the respondent should present the evidence to determine the actual amount paid and clearly raise the issue to preserve it for review.

By: Jigar S. Desai

In a January 27, 2026, Rule 23 order, the Illinois Appellate Court, Second District, Workers’ Compensation Commission Division, addressed the compensability of injuries sustained by a traveling employee who was assaulted by third parties while making deliveries. Avila v. Illinois Workers Compensation Commission, 2026 IL App (2d) 250093WC-U. The court reversed the Commission’s denial of benefits and reinstated the arbitrator’s compensability findings, holding that the Commission’s application of the aggressor defense and its causation analysis were against the manifest weight of the evidence. The court further remanded the case for the Commission to consider whether penalties and attorneys’ fees should be imposed.

Although the decision is nonprecedential, it provides a detailed illustration of how courts analyze street-risk exposures, the aggressor defense, and intervening acts in the context of traveling employees.

Factual Background

Jose Avila worked as a delivery driver for Amazon. On August 1, 2023, while performing his delivery route in Aurora, Avila was driving his truck on a residential street when a black SUV abruptly cut in front of him at close range. The maneuver was sufficiently sharp that Avila had to brake suddenly. Avila testified that the SUV nearly struck a woman who was unloading groceries on the side of the road.

After the near-collision, Avila honked his horn and gestured toward the driver of the SUV. He then stopped his delivery truck and momentarily remained in the area. According to Avila, his purpose in stopping was not to pursue a confrontation with the driver of the SUV but to check on the woman who had nearly been struck and to ensure that she was not injured. The dash camera footage showed Avila stopping his vehicle while a pedestrian remained in the parkway near the truck.

While Avila was stopped, individuals associated with the SUV began yelling at him. The driver of the SUV exited his vehicle and walked toward Avila. Avila testified that he felt threatened because he was still seated and buckled in his truck with the door open, and the approaching individual was on the side of the open door. Avila unbuckled his seat belt and exited the truck. The video footage showed Avila and the SUV driver meeting briefly near the truck, at which point the driver of the SUV punched Avila. Others joined in the scuffle. The physical altercation was brief and partially out of camera view. The woman who was almost struck intervened and calmed the initial confrontation.

After the initial confrontation, Avila returned to his truck and drove away. As he was leaving, he yelled words and made nonverbal gestures to the individuals who had attacked him. Avila stated that he did this out of frustration, but not in a threatening manner.

The dash camera footage showed him continuing along his delivery route through a residential neighborhood for several minutes. Approximately four to five minutes later, and two to three blocks away from the location of the initial encounter, Avila parked his truck to make another delivery. As he walked toward the delivery location, a maroon sedan pulled up near the truck. Several individuals exited the vehicle, including the driver of the SUV from the earlier incident. Avila was attacked from behind, knocked to the ground, and beaten and kicked by multiple assailants. During the assault, one of the attackers took a chain from Avila’s neck.

Avila reentered his truck after the second assault. Dash camera footage showed visible blood on his face and head. He appeared to photograph the fleeing assailants and then stumbled near the passenger side of the vehicle. Emergency medical services transported him to the hospital, where he was treated for facial fractures, dental injuries, head trauma, and related symptoms. He later received follow-up dental treatment and medical care for headaches and psychological symptoms related to the assault.

Procedural History

The case proceeded to arbitration. The employer argued that Avila was the aggressor and his recovery was therefore barred. The arbitrator disagreed and found that Avila’s injuries arose out of and in the course of his employment as a traveling employee and were causally related to the assaults. The arbitrator concluded that the risks of street encounters were incidental to his job duties and that, in any event, the second assault occurred while he was actively making a delivery. The arbitrator awarded temporary total disability benefits, medical benefits, prospective care, penalties, and attorneys’ fees.

On review, the Commission unanimously reversed. The Commission found that Avila was the aggressor in the first incident based on his gestures, conduct, and decision to exit his truck. The Commission further concluded that the second assault would not have occurred but for Avila’s conduct during the first encounter, thereby negating the causal connection to employment.

The circuit court reversed the Commission, finding that the aggressor determination as to the first incident, and the conclusion that the second assault was merely a continuation of the first, were against the manifest weight of the evidence. The employer appealed to the appellate court.

The Appellate Court’s Analysis

The appellate court affirmed the circuit court’s decision. The court began by reaffirming that an injury must arise out of and in the course of employment in order to be compensable. The “in the course of” element concerns the time, place, and circumstances of the injury, while the “arising out of” element requires a causal connection between the employment and the injury. The court noted that injuries sustained by traveling employees are analyzed under more liberal standards because such employees are exposed to the risks of the street as an inherent aspect of their work.

In the Course of Employment

With respect to the “in the course of” requirement, the court had little difficulty concluding that Avila satisfied this element. At the time of the second assault, Avila had resumed his delivery route and was actively engaged in making a delivery. The evidence showed that he had disengaged from the earlier confrontation, driven away, and returned to his work duties. Accordingly, the court found that Avila was within the time and space boundaries of his employment when the injury occurred.

Arising Out of Employment

The court then turned to the “arising out of” element. The Commission had concluded that Avila’s injuries did not arise out of his employment because the assaults stemmed from a personal dispute initiated by his conduct during the traffic encounter.

The appellate court rejected that characterization. It emphasized that Avila’s job as a delivery driver required him to travel public roadways and interact with traffic and members of the public. The risks inherent in street travel, including the possibility of confrontations with other motorists, are risks to which Avila was exposed by virtue of his employment. The court cited established precedent recognizing that assaults on traveling employees by third parties may be compensable when the employment places the employee in a position of increased exposure to such risks.

The Aggressor Defense

The appellate court devoted significant attention to the Commission’s application of the aggressor defense. The court reiterated that an employee who becomes the aggressor in a physical altercation may be found to have departed from the course of employment, thereby breaking the causal connection between employment and injury.

However, the court emphasized that aggressor status is a fact-intensive determination that must be evaluated based on the totality of the circumstances. The mere fact that an employee exchanges words, gestures angrily, or exits a vehicle does not, by itself, establish that the employee became the aggressor in a subsequent physical confrontation.

Reviewing the dash camera footage and testimony, the court found that the Commission’s conclusion that Avila was the aggressor in the first encounter was against the manifest weight of the evidence. The video did not show Avila initiating physical violence, and the evidence showed that the other driver approached Avila’s truck and struck the first blow. While Avila’s conduct may have contributed to a tense encounter, the court concluded that the record did not support a finding that he escalated the encounter into a physical fight so as to forfeit the protections of the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq.

Causation and the Second Assault

The court further rejected the Commission’s conclusion that the second assault was merely a continuation of the first encounter and therefore remained personal in nature. The appellate court emphasized that there was a meaningful temporal and spatial break between the two incidents. Avila had left the scene of the initial confrontation, driven several blocks, and resumed performing his delivery duties. The second attack occurred at a different location, several minutes later, and involved assailants who pursued Avila and initiated a new, unprovoked assault while he was making a delivery.

In addressing causation, the court explained that the Compensation Act does not require that employment be the sole cause of an injury. It is sufficient that the employment be a contributing cause. The court rejected the Commission’s “but for” reasoning that the second assault would not have occurred but for Avila’s earlier conduct. The court noted that such a broad conception of causation would improperly transform many workplace injuries into noncompensable events whenever a claimant’s prior conduct could be traced as part of the chain of events. Instead, the proper inquiry is whether the injury can fairly be traced to a risk of employment, as opposed to a purely personal risk. Here, Avila’s exposure to public street risks as a delivery driver, combined with the fact that he was engaged in work duties at the time of the second assault, supported compensability.

Standard of Review

Finally, the appellate court underscored the standard of review applicable to Commission findings. While the Commission’s factual determinations are entitled to deference, they will be reversed when an opposite conclusion is clearly apparent from the record. The court concluded that the Commission’s findings regarding aggressor status and causation were contrary to the clear weight of the evidence presented.

This decision highlights the importance of carefully separating multiple incidents when analyzing causation. When an employee disengages from an initial confrontation and later sustains injuries in a separate encounter, the later event may be deemed an independent intervening act rather than a continuation of the earlier dispute. Practitioners should analyze temporal separation, geographic separation, and whether the claimant had resumed job duties at the time of injury.

For employers and carriers, the aggressor defense remains viable, but it requires a close examination of the totality of the circumstances. Evidence of verbal provocation or angry gestures may be insufficient, standing alone, to establish that a claimant was the aggressor when the other party initiates physical violence. Video evidence should be reviewed carefully, and the absence of audio may limit the ability to draw firm conclusions about verbal threats or provocations.

For claimants, the case underscores the significance of the traveling employee doctrine and the street-risk doctrine. Employees whose jobs place them in public settings are exposed to risks that may be deemed incidental to employment, including assaults by third parties. Demonstrating that the employee was engaged in job duties at the time of injury remains central to compensability.

By: Kisa P. Sthankiya

In Safeway Scaffolding/Safeway Services, LLC v. Illinois Workers’ Compensation Commission, 2025 IL App (5th) 250298WC-U, the claimant sought benefits pursuant to §19(b) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., for injuries sustained to his low back. The claimant was employed as an insulator and sustained an undisputed low back injury on October 26, 2018. He underwent an L4 through S1 lumbar spine fusion surgery on February 11, 2019, and was authorized to return to work on May 17, 2019, with a 20-pound lifting restriction and to avoid repetitive bending, stooping, or twisting.

On June 6, 2019, a light duty assignment was made commencing on June 10, 2019. The claimant testified that he did not appear on June 10, 2019, due to a flood that caused bridge and ferry closures causing a 4-hour drive to work, and he had a 30-minute sitting restriction. He also testified that the job was a sham offer based on his situational experience. The respondent’s witness testified that the light duty job assignment was within the claimant’s restrictions and consisted of necessary tasks and was not a sham. He also testified that the position required making and trimming bandings. The job did not require any lifting.

Dr. Coyle amended the restrictions on July 2, 2019, to include 30 pounds lifting and intermittent sitting, standing, and walking every 30 minutes.

On July 7, 2019, the claimant contacted the employer and left a voicemail that he would return to work in a light-duty capacity. The employer did not respond to this call.

The claimant continued to treat thereafter until October 14, 2019, when he was released to maximum medical improvement by Dr. Coyle. He recommended the claimant seek physiatrist treatment if necessary.

Thereafter, the claimant was examined by Dr. Wayne at respondent’s request. He opined that the claimant could have returned to work light duty on May 17, 2019, and full duty as of October 14, 2019.

On January 10, 2020, the respondent sent an email offering to bring the claimant back to work full duty consistent with Dr. Wayne’s opinions. There was no restriction on driving, and they believed the claimant could pull over if he had issues driving to work.

The claimant testified that he wanted to proceed with additional treatment as recommended by Dr. Coyle. He understood he had been offered a job to return to work full duty. However, he did not believe he would be able to perform the job of an insulator and requested vocational rehabilitation services.

The arbitrator determined that the claimant had sustained a compensable accident and that his condition was causally related but that no further treatment was necessary. Medical benefits were awarded through the date of maximum medical improvement (MMI) of October 14, 2019. The arbitrator believed the petitioner could return to work full duty based on both Dr. Coyle and Dr. Wayne’s inability to find any explanation for the claimant’s alleged low-back pain when sitting. He also found significant Dr. Wayne’s findings of symptom magnification and Dr. Coyle’s opinions that the claimant did very well after surgery, could walk seven miles a day, and was in excellent health and physical condition. Prospective medical treatment was denied. Additionally, the arbitrator denied the claimant temporary total disability (TTD) after his refusal to return to work in a light-duty assignment after July 8, 2019. The arbitrator also denied vocational rehabilitation benefits.

The Commission affirmed and adopted the arbitrator's decision with certain modifications. On review, the circuit court of Madison County found that the Commission’s award of TTD benefits and its denial of maintenance benefits and vocational rehabilitation were against the manifest weight of the evidence. The court concluded that the claimant had not declined the light-duty job offered by the respondent.

On appeal, the respondent raised two principal issues. First, the Commission’s finding that the claimant’s refusal for light-duty work restrictions was not against the manifest weight of the evidence. Secondly, the Commission’s decision to deny maintenance and vocational rehabilitation services should be upheld.

The central issue before the court was whether the Commission’s denial of TTD benefits after July 8, 2019, was against the manifest weight of the evidence. Relying on Gallentine v. Industrial Commission, 201 Ill.App.3d 880, 559 N.E.2d 526, 147 Ill.Dec. 353 (2d Dist. 1990), and Presson v. Industrial Commission, 200 Ill.App.3d 876, 558 N.E.2d 127, 146 Ill.Dec. 164 (5th Dist. 1990), the court emphasized that the dispositive inquiry is whether the claimant’s unemployment results from medical incapacity or from a voluntary refusal of available work. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶27. They noted that the record supported the Commission’s conclusion that the claimant never intended to return to work for the respondent, notwithstanding repeated offers of light-duty and, later, full-duty employment. The claimant’s failure to report to work on June 10, 2019, his characterization of the position as a “sham,” and his lack of response to subsequent job offers collectively undermined his claim for continued TTD. They noted that the record supported that the job offer was not a sham given the respondent’s testimony. They noted that despite the offer that light duty work continued to be available, the claimant never presented for a light duty assignment.

Significantly, the court rejected the claimant’s argument that the absence of MMI was dispositive. While MMI often marks the natural endpoint of TTD, the court reiterated that it is not a prerequisite to the termination of TTD benefits. An employee who is medically capable of working within restrictions and who declines an offer for light duty work is not temporarily totally disabled within the meaning of the Workers’ Compensation Act, even if additional treatment is contemplated. 2025 IL App (5th) 250298WC-U at ¶54, citing Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, 236 Ill.2d 132, 923 N.E.2d 266, 276, 337 Ill.Dec. 707 (2010) (TTD benefits may be “suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor”).

The court also gave substantial deference to the Commission’s credibility determinations. The Commission reasonably discounted the claimant’s explanations for failing to report to work, particularly where certain restrictions were imposed only after the job offer was made and where medical evidence contradicted the claimant’s assertions regarding his inability to drive or sit. The Commission’s rejection of the “sham job” characterization was likewise supported by detailed testimony regarding the job’s duties and its consistency with the claimant’s restrictions.

Viewed collectively, the decision reinforces the evidentiary burden on claimants to demonstrate not only ongoing medical need but a genuine inability to work. It also confirms that well-documented, bona fide light-duty offers that have been declined can serve as a defense to a claim for TTD benefits.

The second issue concerned whether Commission’s original decision denying maintenance and vocational rehabilitation benefits was against the manifest weight of the evidence. The claimant argued that vocational rehabilitation was necessary because he could not return to his pre-injury job as an insulator and that the respondent failed to accommodate his restrictions. The court rejected this argument, holding that the Commission’s decision was not against the manifest weight of the evidence.

The court began by reiterating that vocational rehabilitation and maintenance are not automatic entitlements under §8(a) of the Workers’ Compensation Act. The claimant may only receive maintenance benefits while engaged in a prescribed vocation rehabilitation program. Rather, they are awarded where a work-related injury results in diminished earning capacity and where rehabilitation is reasonably likely to restore or increase that capacity. 2025 IL App (5th) 250298WC-U at ¶65, citing National Tea Co. v. Industrial Commission, 97 Ill.2d 424, 54 N.E.2d 672, 676, 73 Ill.Dec. 575 (1983). Importantly, maintenance benefits are incidental to participation in an approved vocational rehabilitation program and are payable only while the employee is actively engaged in such a program. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65, citing Euclid Beverage v. Illinois Workers’ Compensation Commission, 2019 IL App (2d) 180090WC, ¶29, 124 N.E.3d 1027, 429 Ill.Dec. 517.

Here, the Commission found that vocational rehabilitation was neither necessary nor appropriate because the claimant was capable of returning to work within his restrictions and had been offered suitable employment by the respondent. The record demonstrated that the claimant’s skills and physical abilities were sufficient to obtain employment without additional training, particularly given medical opinions supporting a return to full duty. Moreover, the claimant’s failure to accept light-duty work supported the conclusion that he lacked the requisite intent to return to work — a factor that independently weighs against an award of vocational rehabilitation.

The court also distinguished this case from situations in which an employer refuses to provide suitable work after an employee expresses a willingness to return. Unlike cases such as Otto Baum Company, Inc. v. Illinois Workers’ Compensation Commission, 2011 IL App (4th) 100959WC, 960 N.E.2d 583, 355 Ill.Dec. 701, the evidence in this case showed that the respondent consistently maintained the availability of work within the claimant’s restrictions and communicated that availability through counsel as documented in an email. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65. The claimant’s failure to respond to or pursue those offers precluded a finding that vocational rehabilitation was necessary.

The Commission’s original decision was reinstated and the matter remanded with directions.

NWCDN State News – West Virginia

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

June 1, 2026

West Virginia Legislature – 2026 Regular Session

House Bill 5515 updated the Workers’ Compensation Statutes and is effective June 12, 2026. The bill revised outdated and/or unnecessary provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation insurance and benefits. The legislation also repealed certain sections within Chapter 23 that are obsolete. As previously reported, the legislation represents a comprehensive modernization of West Virginia’s workers’ compensation statutes. It updates, reorganizes, and repeals numerous provisions in Articles 4 and 5 of Chapter 23 to improve administrative clarity, ensure consistency, and align the code with post-2005 reforms. The Insurance Commissioner indicated that this bill represents the final phase of a multi-year cleanup effort. In addition to modernizing statutory language, the bill would grant the Governor flexibility to reduce the number of Board of Review members as caseloads decline.

Supreme Court of Appeals of West Virginia

The May 12, 2026 election did not favor the incumbents. Justices Thomas Ewing and Justice Gerald M. Titus III, both appointed by Gov. Patrick Morrisey to fill open seats on the state Supreme Court, were defeated in the election on May 12, 2026.

In the Supreme Court election for the term expiring in 2028 to fill the seat formerly held by Justice Beth Walker, Bill Flanigan, a Wheeling lawyer, defeated Justice Ewing.

The second Supreme Court election was for an unexpired term to fill the seat formerly held by Justice Tim Armstead, who died last year. Candidates ran to fill out the term that expires in 2032. The winner of the race was H.L. “Kirk” Kirkpatrick, a senior status judge and circuit court judge from Raleigh County. Five candidates were vying to fill this seat, including incumbent Justice Gerald Titus,  former attorney at Spilman, Thomas & Battle, PLLC, who was appointed to fill the vacant seat until the election. The other candidates were  Todd Kirby, a former state delegate and current circuit judge in Raleigh County; Laura Faircloth, a current circuit judge in the Eastern Panhandle; and Martin “Red Hat” Sheehan, a Wheeling attorney.

First Term of Court 2026

As the First Term of Court in 2026 nears its end in June, the Court has not issued any signed opinions related to workers’ compensation cases. It has issued fourteen memorandum decisions.

In John Moore v. United Coal Company, LLC, No. 25-822 (W. Va. S. Ct. April 24, 2026) (memorandum decision), the Supreme Court affirmed the September 30, 2025 Memorandum Decision of the Intermediate Court of Appeals (“ICA”) that affirmed the March 7, 2025 Board of Review order affirming the claim administrator’s February 26, 2024 order rejecting the claim for Carpal Tunnel Syndrome. Claimant alleged his CTS resulted from his employment as an underground coal miner. The claimant argued that the Board of Review erred in finding the report of Austin Nabet, D.O., more persuasive than the report of Michael Kominsky, D.C., due to Dr. Nabet’s discussion of the claimant’s diabetes. The claimant argues that his diabetes was not severe enough for the Board of Review to disregard the claimant’s years of working with numerous, very heavy high-impact tools that required him to use a tight grip and subjected him to extensive vibrations while having to bend and rotate his wrists. The case turned on the employer’s expert opinion that claimant’s diabetes condition was the likely cause of CTS. The Supreme Court quoted the ICA opinion in Moore v. United Coal Co., LLC, No. 25-ICA-137, 2025 WL 2781461 (W. Va. Ct. App. Sept. 30, 2025) (memorandum decision) that stated: “’Dr. Nabet’s report addresses the significance of [the claimant]’s diabetes as documented in the medical records and is more complete [than Dr. Kominsky’s report] in addressing compensability.’ 2025 WL 2781461, at *3.” Moore, 2025 WL 2781461, at *3. The Supreme Court also relied on the ICA noting that West Virginia Code of State Rules § 85-20-41.4 includes diabetes as among those “[m]edical conditions [that] frequently produce or contribute to CTS.” 2025 WL 2781461, at *3, n. 2. See Moore, 2025 WL 2781461, at *3. The Court found the evidence and law supported the ICA’s decision particularly in its support of the Board of Review’s finding Dr. Nabet considered claimant’s diabetes condition as a contributing cause of CTS. In a dissenting opinion, Justice Wooton would have reversed the ICA to find the claim compensable based on Dr. Kominsky’s opinion claimant’s eight years of working with mining equipment could have caused the CTS.

In William K. Willis v. Fayette County Commission, No. 25-734 (W.Va. Supreme Court, April 21, 2026) (memorandum decision) the Court decided a heart attack suffered at work was not a compensable injury. The claimant appealed the ICA decision that affirmed the Board of Review order which affirmed the claim administrator’s order rejecting the claim. The claimant, a deputy sheriff, asserts that he suffered a heart attack during the apprehension of a criminal. During the apprehension, the claimant experienced heightened stress due to the need to protect the public. The claimant argued that the heart attack was in the course of his employment and resulted from the performance of his job duties. The employer countered by arguing that the Board of Review was not clearly wrong in finding that the claimant failed to present evidence showing that the heart attack he suffered was due to his work activities. Instead, the claimant speculates that the heart attack resulted from his employment. Speculation is not evidence of a causal connection between the heart attack and the claimant’s job. The Board of Review found that there was no medical evidence establishing that the heart attack the claimant suffered was due to his work activities. Without such medical evidence, the Board of Review concluded that the claimant relied upon speculation, which was insufficient to show a work-related injury. See Syl Pt. 4, Clark v. State Workmen’s Compensation Comm’r, 155 W. Va. 726, 187 S.E.2d 213 (1972) (“Where proof offered by a claimant to establish his claim is based wholly on speculation, such proof is unsatisfactory and is inadequate to sustain the claim.”). The ICA affirmed the Board of Review’s decision, observing that the Supreme Court has previously held that a heart attack suffered at work is not compensable without a causal connection between the claimant’s job duties and the heart attack. Willis, 2025 WL 2491264 at *3 (citing Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 812, 172 S.E.2d 698, 707 (1970)).

In Blackhawk Mining, LLC v. Harold G. Woods Jr., No. 25-661 (W.Va. Supreme Court, April 21, 2026) (memorandum decision), the Court addressed the question whether coal dust exposure can cause occupational asthma. Petitioner Blackhawk Mining, LLC appealed the August 6, 2025, decision of the ICA. See Blackhawk Mining, LLC v. Woods, No. 25-ICA-63, 2025 WL 2249390 (W. Va. Ct. App. Aug. 6, 2025) (memorandum decision). The issue on appeal is whether the ICA erred in affirming the January 16, 2025, decision of the West Virginia Workers’ Compensation Board of Review, which reversed the claim administrator’s July 14, 2022, order rejecting the claim. The Board of Review held the claim compensable for occupational asthma. The employer argued that the claimant failed to show that he has occupational asthma. The Occupational Pneumoconiosis Board (“OP Board”) and every qualified pulmonologist and occupational medicine physician in this case agreed that coal dust does not cause asthma. Therefore, the employer argues that the claimant’s inconsistent pulmonary function testing, preexisting allergic history, unqualified experts, and speculative allegations of exposure fail, as a matter of law, to show that he contracted an occupational disease due to his work environment. The employer also argued that the ICA and the Board of Review should be reversed, and the claim administrator’s order rejecting the claim should be reinstated. The claimant countered by arguing that his diagnosis of occupational asthma due to exposure to coal mine dust, which includes more substances than just coal dust, is amply supported by the opinions of his experts, including his former treating physician. The claimant provided evidence of his exposure to various contaminants present in the employer’s coal prep plant, and there was no indication of hazardous exposure outside of that work environment. Therefore, the claimant argued that the Board of Review, as affirmed by the ICA, properly reversed the claim administrator’s order to hold the claim compensable. In reply, the employer argued that the claim should be rejected because the OP Board testified that the claimant does not have work-related asthma. In affirming the Board of Review’s decision, the ICA deferred to the Board of Review’s credibility determinations and weighing of the evidence. Woods, 2025 WL 2249390, at *5 (citing Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995)). The ICA concluded that the Board of Review was not clearly wrong in finding that the claimant showed by a preponderance of the evidence that he contracted occupational asthma in the course of and resulting from his employment. Id. The Supreme Court reviews questions of law de novo, while it accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, The Supreme Court found no reversible error and, therefore, summarily affirm. See W. Va. R. App. P. 21(c).

In Blackhawk Mining, LLC v. Harold G. Elswick II, No. 25-735, (W.Va. Supreme Court, March 24, 2026)(memorandum decision), the Court addressed an apportionment of preexisting impairment under W. Va. Code § 23-4-9b and Duff v. Kanawha Cnty. Commission, 250 W.Va. 510, 905 S.E.2d 528 (2024). The issue on appeal was whether the ICA erred in affirming the December 16, 2024, decision of the West Virginia Workers’ Compensation Board of Review, which reversed the claim administrator’s June 13, 2023, order granting 9% permanent partial disability. The Board of Review granted an additional 4% for a total award of 13% permanent partial disability. The employer asserted that the Board of Review rejected the 9% impairment rating provided by Prasadarao B. Mukkamala, M.D., for arbitrarily splitting impairment between compensable and preexisting conditions 50-50. Bruce A. Guberman, M.D., engaged in the same kind arbitrary apportionment disapproved by the Court in Duff v. Kanawha County Commission, 250 W. Va. 510, 520, 905 S.E.2d 528, 538 (2024). Yet, the Board of Review accepted Dr. Guberman’s 13% impairment rating without adequate explanation of its reasoning. In addition to arbitrarily splitting impairment between compensable and preexisting conditions, Dr. Guberman also rounded up when calculating impairment without providing a sufficient rationale for doing so. Therefore, the employer argued that the Supreme Court should reverse the Board of Review’s decision granting an additional 4% for a total award of 13% permanent partial disability. The claimant counters by arguing that the evidence in the record supports the Board of Review’s decision and its reliance on Dr. Guberman’s report. The claimant argued that reversing the Board of Review would require the Supreme Court to substitute its judgment for the Board’s when the Board was not clearly wrong. Therefore, the claimant argued that the Court should affirm the Board of Review’s decision. The Board of Review found that Dr. Mukkamala’s apportionment of the claimant’s cervical impairment was conclusory and without probative value. The Board of Review stated that Dr. Guberman’s “more reasoned and rational” apportionment met the standards the Supreme Court set forth in Duff. The ICA found that the Board of Review was not clearly wrong in relying on Dr. Guberman’s report. Elswick, 2025 WL 2491282, at *4. The ICA also noted that the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), which both Drs. Mukkamala and Guberman utilized in rating the claimant’s impairment, “contemplate rounding up percentages of apportionment[.]” Elswick, 2025 WL 2491282, at *3 n.3. The Supreme Court reviews questions of law de novo, while it accords deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Duff, 250 W. Va. at 512, 905 S.E.2d at 530, Syl. Pt. 3. Upon consideration of the record and briefs, the Supreme Court found no reversible error and therefore summarily affirm. See W. Va. R. App. P. 21(c).

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

Terry Kyle v. Patriot Coal Corp., No. 25-605 (W.Va. Supreme Court, January 13, 2026) (memorandum decision) is a January 2026 WV Supreme Court decision regarding a permanent partial disability (“PPD”) rating for occupational pneumoconiosis (“OP”). In February 2022, the claimant completed an employees’ and physicians’ report of OP, and indicated that he was last exposed to occupational dust in November 2015 when he ceased working due to health issues. The claimant stated that he became short of breath when walking, bending over, and carrying groceries. The Occupational Pneumoconiosis Board (“the OP Board”) evaluated the claimant in March 2023 and noted that he was exposed to occupational dust for twenty-three years. A chest x-ray was found by the OP Board to show insufficient evidence of pleural or parenchymal changes to support a diagnosis of OP. The claimant underwent pulmonary function testing in July 2023, which showed 10% pulmonary impairment. He subsequently underwent pulmonary function testing in April 2024 which showed 0% pulmonary impairment. The OP Board found the two studies to be minimally different from each other, and it noted that such studies frequently show fluctuating values on different days. The OP Board relied on the April 2024 study to find 0% impairment, explaining that the pulmonary function study with the best volumes most accurately shows the extent of a claimant’s breathing capacity. 

Based upon the OP Board’s final hearing testimony, the Board of Review affirmed the claim administrator’s order granting 0% permanent partial disability for OP, concluding that the OP Board’s findings were not clearly wrong. The ICA affirmed the decision. On appeal to the Supreme Court, the claimant argued the ICA had noted that the lower tribunal’s decision “lacks reasoning.” The claimant also argued he should have been granted 10% PPD for OP based on the July 2023 study due to the evidence being in equipoise. This argument was based on W. Va. Code § 23-4-1g(a) which provides that “[i]f, after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant’s position will be adopted.” However, the Supreme Court found that W. Va. Code § 23-4-1g(a) does not apply because the evidence was not in equipoise. The OP Board found that the April 2024 pulmonary function study, showing 0% impairment, had the best volumes. West Virginia Code § 23-4-6a provides that this Court “shall affirm the decision of the [OP] Board made following [the] hearing unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.” The claimant did not meet his burden of establishing that the OP Board was clearly wrong in its decision, thus the 0% PPD award was affirmed.

Intermediate Court of Appeals of West Virginia

The May 12, 2026 election on the Intermediate Court of Appeals saw a race that featured incumbent Judge Dan Greear, an original sitting member of the ICA, and Kanawha County Family Court Judge Jim Douglas. The incumbent lost the election.

As the First Term of Court concludes in June 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued forty-four memorandum decisions related to workers’ compensation cases.

Mercer County Board of Education v. Rosemary S. Mitchell, No. 25-ICA-427 (W.Va. Intermediate Court of Appeals, May 1, 2026) (memorandum decision). Ms. Mitchell argued that she was at work in the superintendent of schools’ office, discussing a situation, when she stood up and rolled her right ankle and injured her foot. Ms. Mitchell alleged that she got her right foot hung on the side of the chair and when she stood, the ankle rolled. MCBOE argued that Ms. Mitchell failed to establish a compensable claim. MCBOE admitted that the evidence on record establishes that Ms. Mitchell sustained an ankle injury while standing up from a chair. However, MCBOE argued that Ms. Mitchell’s employment offered no increased risk of injury beyond what any other person would have sustained outside of their employment. MCBOE characterized Ms. Mitchell’s injury as “idiopathic.” Finally, MCBOE argued that the finding of compensability in this claim is in contradiction to the increased risk test set forth in Hood v. Lincare Holdings, Inc., 249 W. Va. 108, 894 S.E.2d 890 (2023). The ICA disagreed. The ICA noted, as did the Board, that the clear cause of the injury is Ms. Mitchell’s foot getting caught in a chair as she was standing up, meaning that the cause and mechanism of the injury are known. The ICA concluded that the Board was not clearly wrong in finding that Ms. Mitchell sustained a left ankle injury in the course of and as a result of her employment. Further, the ICA concluded that the Board was not clearly wrong in finding that the claim fell within the first risk category of Hood, and evaluating the claim under that category. As the Supreme Court of Appeals has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, the ICA cannot conclude that the Board was clearly wrong in reversing the claim administrator’s order, which rejected the claim.

WVNH EMP LLC & PMA Insurance Companies v. Maureen Swisher, No. 25-ICA-374 (W.Va. Intermediate Court of Appeals, April 7, 2026 decision) (memorandum decision). The Employer appealed the September 8, 2025, order of the Workers’ Compensation Board of Review granting Respondent Maureen Swisher’s petition for attorney’s fees based on the finding that the claim administrator’s October 2, 2024, order declaring an overpayment of temporary total disability (“TTD”) payments was unreasonable pursuant to West Virginia Code § 23-2C-21(c) (2022). On appeal, WVNH asserts one assignment of error and argues the Board’s decision to grant attorney’s fees based on the claim administrator’s declaration of overpayment is erroneous because an overpayment is not the same as “a denial of an award of temporary total disability” as used in West Virginia Code § 23-2C-21(c). The ICA agreed. The ICA found WV Code § 23-2C-21(c) did not include overpayment in the statute language where denial of an award of TTD, denial of compensability, and denial of medical benefits are specifically included. Judge White dissented. He stated that an overpayment determination that is later reversed because the claimant was entitled to the benefits should be treated, for purposes of § 23-2C-21(c), as tantamount to an unreasonable denial.

Freda J. Lee v. Little General Stores, Inc., No. 25-ICA-309, (W.Va. Intermediate Court of Appeals, May 1, 2026) (memorandum decision). The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which rejected the claim.

Ms. Lee completed an Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form on May 20, 2024, alleging that she injured her back at work on May 15, 2024, while lifting beverages and taking them to the cooler. Andrew D. Bryant, D.O., completed the physician’s section of the WC-1 form on May 20, 2024, and identified the lumbar spine as the body part injured and diagnosed a lumbar disc herniation that resulted from an occupational injury. Further, Dr. Bryant noted that the injury did not aggravate a prior injury or disease. Dr. Bryant took Ms. Lee off work from May 20, 2024, to June 1, 2024. On June 5, 2024, Ms. Lee received treatment from Richard Knapp, M.D., related to a work-related injury of her thoracic and lumbar spine. Ms. Lee reported that her thoracic pain was nearly resolved and her lumbar pain had improved, but she still had lingering pain that radiated into her right lower extremity. Dr. Knapp diagnosed thoracic and lumbar strains and requested spinal x-rays and physical therapy. Dr. Knapp also released Ms. Lee to return to work at light duty with limitations on lifting, pushing, and pulling. On June 15, 2024, Dr. Knapp completed a Physical Capability Assessment form for Ms. Lee. Dr. Knapp placed Ms. Lee on restrictions from any extensive lifting, pushing, or pulling of more than ten pounds.

Before the injury at issue in this claim, between January of 2017 and April 23, 2024, Ms. Lee received treatment for symptoms related to her back. Murray E. Joiner, Jr., M.D., and his physician’s assistants saw Ms. Lee nearly every month to provide pain medication refill prescriptions to treat her chronic low back pain. The providers at Dr. Joiner’s office consistently diagnosed Ms. Lee with chronic low back pain, other intervertebral disc displacement of lumbar and lumbosacral regions, left leg sciatica, fibromyalgia, and other lumbar related conditions. In February of 2019, a new MRI of her lumbar spine was reviewed by Dr. Joiner’s physician’s assistant who noted that it showed a herniated nucleus pulposus, but no nerve root compression. In August and November of 2019, Ms. Lee received lumbar injections from L2-L3 to L5-S1 and an ultrasound-guided injection. On November 12, 2020, Ms. Lee reported that the previous month she was hospitalized after she fell from scaffolding, and she reported severe back pain. In multiple visits between 2022 and 2023, Ms. Lee reported pain in her mid to low back. On March 26, 2024, Ms. Lee reported worsening pain all over her body, including severe low back pain. On April 23, 2024, Ms. Lee reported an increase in her low back pain due to working at her job.

In May of 2023, Ms. Lee sought a pain management physician to treat fibromyalgia, arthritis in her knee, and pain in her mid and lower back after she moved to Madison, West Virginia. To that end, she underwent a new patient examination by Andrew Bryant, D.O., at BMH Medical Clinic. Dr. Bryant noted that Ms. Lee’s prescribed medications included narcotics, anti-inflammatories, and steroids. At a visit in October of 2023, Dr. Bryant discussed Ms. Lee’s ability to work in light of her pain from degenerative spinal conditions. Dr. Bryant explained to Ms. Lee that her pain may worsen with more activity, although activity was beneficial for her arthritic knee condition. By order dated August 7, 2024, the claim administrator rejected Ms. Lee’s claim as it found that she did not sustain an injury in the course of and resulting from her employment. The claim administrator listed May 16, 2024, as the date of the injury. Ms. Lee protested this order to the Board. At a deposition on December 9, 2024, Ms. Lee testified that she worked as a cashier for her employer and injured her back on May 15, 2024, while stocking cases of beverages in coolers. Ms. Lee stated that, as she opened a large door while carrying cases of bottled beverages, she pulled her back and felt pain down the right side of her lower back and into her hip. Ms. Lee said that she reported the injury to her supervisor the following day, although she was off work, and several days later, she saw Dr. Bryant. According to Ms. Lee, Dr. Bryant diagnosed a lumbar sprain and referred her to Dr. Knapp since it was a work related injury. She testified that she discontinued physical therapy after the claim was rejected, but she later resumed it, and it was still ongoing. Regarding prior back problems, Ms. Lee testified that in 2018 or 2019, she fell and suffered an upper spine compression fracture and broken ribs. However, Ms. Lee said that she had completely healed from the injury, and she denied that the injury involved her low back and denied having any prior treatment for her lower back. Ms. Lee testified that on the date of her injury, she had no work restrictions. On cross-examination, Ms. Lee testified that she has been treated by a pain management specialist for arthritis and fibromyalgia but denied that she was treated for spine pain. On July 2, 2025, the Board affirmed the claim administrator’s order rejecting the claim. The Board found that Ms. Lee failed to establish that she sustained a new injury to her lumbar spine as a result of an injury on May 15 or May 16, 2024, that occurred in the course of and resulting from her employment. Ms. Lee appealed the Board’s order.

On appeal, Ms. Lee argued that she established that she suffered a lumbar injury that occurred in the course of and resulting from her employment on or about May 16, 2024, as demonstrated by medical records. Ms. Lee asserts that the Board’s finding that she did not sustain a compensable injury is not supported by the evidence or the law and should be reversed. Ms. Lee maintains that the Board gave excessive weight to the fact that she suffered a serious back injury several years before the injury in this claim, and it failed to acknowledge that, although she received periodic treatment for her injury, she was able to work a strenuous job. Thus, Ms. Lee contended that any prior, ongoing low back issues were minor and inconsequential. Finally, Ms. Lee argued the Board did not properly weigh the evidence, as it should have found that there was at least an equal amount of evidence supporting her position that her low back injury is compensable. The ICA disagreed.

For a workers’ compensation claim to be held compensable, three elements must coexist: (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). Also, “[i]n determining whether an injury resulted from a claimant’s employment, a causal connection between the injury and employment must be shown to have existed.” Syl. Pt. 3, Emmel v. State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29 (1965). The Supreme Court of Appeals of West Virginia has “traditionally held that a workers’ compensation claimant has the burden of proving his or her claim by proper and satisfactory proof.” Casdorph v. West Virginia Office Ins. Comm’r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). The Board noted that Ms. Lee completed a WC-1 form on May 20, 2024, in which she alleged that she suffered a back injury on May 15, 2024, while lifting and carrying cases of beverages to a cooler at her workplace. The Board further noted that the record established that Ms. Lee received regular pain management treatment for chronic low back pain, other intervertebral disc displacement in the lumbar region, fibromyalgia, lumbar radiculopathy, and sciatica between January of 2017 and April of 2024.

The Board analyzed the case pursuant to the Supreme Court of Appeals of West Virginia’s (“SCAWV”) holdings in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022).

The SCAWV held in Gill:

A noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a [discrete] new injury, that new injury may be found compensable.

Gill at 738, 783 S.E.2d at 858, syl. pt. 3.

The SCAWV clarified its position in Moore, holding:

A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

Moore at 294, 879 S.E.2d at 781, syl. pt. 5.

Here, the Board found that Ms. Lee failed to establish that she is entitled to the presumption pursuant to Moore, that her lumbar spine herniated disc resulted from an injury in May of 2024. The Board noted that a lumbar MRI performed in 2019 revealed a herniated nucleus pulposus with no nerve root compression. Based on numerous treatment notes in the record, the Board concluded that Ms. Lee received extensive treatment for lumbar spine symptoms that are virtually the same as those she reported in June of 2024, after the alleged work injury. Further, the Board pointed out that on April 23, 2024, only three weeks before the alleged injury, Ms. Lee received treatment for her low back pain. The Board noted that pursuant to SCAWV’s decision in Gill, a pre-existing injury may not be added as a compensable component in a workers’ compensation claim.

Upon review, the ICA concluded that the Board was not clearly wrong in finding that Ms. Lee failed to establish that she suffered a lumbar injury in May of 2024 in the course of and resulting from her employment. The ICA found that there is ample evidence that Ms. Lee suffered ongoing, symptomatic back pain requiring medications and injections from as far back as 2017 and up to only a few weeks before the alleged injury in this claim. As the Board concluded, Ms. Lee’s symptoms predated the alleged injury and are virtually the same as her symptoms following the alleged injury. As set forth by the SCAWV, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, the ICA cannot conclude that the Board was clearly wrong in affirming the claim administrator’s order, which rejected the claim.

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

The 2026 legislative changes represent an attempt to make the Minnesota workers’ compensation system operate as efficiently and effectively as possible. While some of the changes benefit injured Employees, others provide additional lenience to Employers and Insurers. Specifically, the changes may result in an increase in claims for post -traumatic stress disorder. They also serve to increase overall exposure for permanent partial disability benefits. To the benefit of Employers and Insurers, the new legislation provides additional time to amend a primary liability determination where additional investigation is needed. 

Changes Impacting all Dates of Injury 

Minn. Stat. § 176.155, Subd. 1. Employer’s Physician

This rule allows employees to have a personal physician or unpaid witness present at an IME. It is still the responsibility of the employee to cover the cost of the attendance of their personal physician, but they are now allowed to have someone other than their physician present during an examination.

Changes Impacting Dates of Injury on or After October 1, 2026

Minn. Stat § 176.011, Subd. 15. Occupational Disease

• A diagnosis of work-related post-traumatic stress disorder can now be made by a psychiatric mental health nurse practitioner, not just by a licensed psychiatrist or psychologist.   

Minn. Stat. § 176.221, Subd. 1. Commencement of Payment

• An employer and insurer now have 90 days (an increase from 60 days) to file an Amended Notice of Primary Liability Determination (NOPLD).

Minn. Stat. § 176.101, Subd. 2a. Permanent Partial Disability

·         The dollar amount for any given permanent partial disability rating has been increased by approximately 20%

INDIANA UPDATES OF WORKER’S COMPENSATION BOARD ACTIVITY

Two new judges (Single Hearing Members) have been appointed:

Southeast Indiana

Michael Ooley has been appointed effective June 2, 2026 to serve as Single Hearing Judge in southeastern Indiana from New Albany west up through Terre Haute.

Central Indiana

Steven M. Koers has been transferred from southeast Indiana to the Marion County District which includes Indianapolis and Hamilton County and will serve as Single Hearing Judge for the middle of the state.

Both new judges are members of the Indiana Worker’s Compensation Board which hears all appeals from the six single hearing judges throughout the state.

LEGISLATIVE AND CASE LAW UPDATE

HB Construction and/or Auto Owners Insurance Company v. Labor Commission of Utah and James Beaty 2026 UT 3 (Issued February 26, 2026}

The Utah Supreme Court decision in HB Construction v. Labor Commission will severely restrict workers compensation carrier's for claiming a free ride in Utah on future credits from a third party personal injury recovery. The Court held that if a workers compensation carrier wants to claim an offset against future worker's compensation obligations for medical expenses and disability compensation, it must pay its proportionate share of the employee's litigation costs and attorney fees up front. The Court held the proportionate share of costs and attorney fees is to be calculated on the value of both past-paid and future anticipated benefits. The Court held that a carrier is now strictly required to reimburse the employee for its unpaid share of litigation expenses before it can begin receiving an offset against ongoing medical expenses and disability compensation. Defense Counsel, Insurance adjusters, and subrogation Attorneys will all have to alter how they evaluate third party liens and recoveries.

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

Recently, Florida’s First District Court of Appeal (which handles all workers’ compensation appeals in the state) dramatically changed how the Statute of Limitations is applied in Florida workers’ compensation claims. The SOL is set forth in Section 440.19, Florida Statutes, and provides as follows:

(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.

(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

Historically, this has been interpreted to mean that the SOL expires upon the later of two years from the date of the accident or one year from the date of the last provision of benefits. However, in the recent case of Estes v. Palm Beach County School District, the First DCA reshaped the interpretation of Section 440.19 by redefining the word “toll” as it is used in 440.19(2). Under the historic interpretation, the word “toll” is defined as “extend,” meaning that the provision of medical or indemnity benefits extends the expiration of the SOL for one year. In Estes, the Court redefines “toll” to mean “suspend, stop temporarily, or abate.” Specifically, the Court stated “[w]e therefore hold en banc that the tolling provision in § 440.19(2) suspends or stops temporarily the limitations-period clock established in subsection (1), instead of extending separate one-year limitations periods for claimants to file claims in these cases.”

The Court examined how it had previously used “toll” in its prior decisions and found that their earlier decisions did not properly interpret the term as it is used in Section 440.19. They performed a lengthy textual analysis of how “toll” had been used in various prior cases and statutes in other contexts (ex: medical malpractice and property insurance claims) and determined that the correct interpretation of “toll” is to pause, rather than to extend.

In Estes, the claimant was injured on September 30, 2021. She last received authorized treatment on January 26, 2023. Under the historic SOL interpretation, the SOL would have run on January 26, 2024, one year from the last provision of benefits. However, the Court here held that Section 440.19 provides two separate clocks: a one-year clock which begins to run after each provision of benefits and resets upon each additional provision of benefits, and a two-year SOL master clock which does not even begin to run until the one-year clock has expired. The Court stated:

And so, here, under § 440.19, after an employee knows or should have known of a qualifying workplace injury, the two-year limitations-period clock begins to run. But then, if an E/C provides benefits after the injury, the limitations-period clock is stopped while the one-year tolling clock begins running (and then restarts after every subsequent provision of a benefit). The limitations-period clock restarts again one year after the provision of the last benefit.

 Put a different way, the two-year SOL creates a bank of 730 days that must run out before the SOL has expired on a claim. Days are subtracted from this bank only if it has been more than one year since the last provision of benefits. If benefits are provided, a new one-year clock begins to run, and days are not subtracted from the bank until the one-year clock expires. This effectively creates an SOL that is three years from the last provision of benefits minus any time that elapsed between the date of accident and the first provision of benefits.[1] The Employer/Carrier in Estes is seeking review from the Florida Supreme Court, but the two-clock method set forth in Estes remains the applicable SOL for now.

Noah Vollmer

Bleakley Bavol Denman & Grace

nvollmer@bbdglaw.com

813-221-3759 

The New Hampshire Department of Labor will be moving to a new location in the State Office Park, on May 27, 2026. The Department’s new location will be Londergan Hall, 101 Pleasant Street, Concord, NH. The Hearings Bureau and all administrative hearing activity will remain located at the Spaulding Building, 95 Pleasant Street, Concord, NH, until further notice. Hearings and any other meeting scheduled with the Department will remain at 95 Pleasant Street, Concord, NH 03301 unless you are specifically advised otherwise.

Please be aware that, with the exception of the Hearings Bureau, Department of Labor staff and telephone lines may have limited availability, beginning on May 26, 2026, during this transition. You may continue to email the Department of Labor or leave a voicemail message during this transition period. Department staff will respond as quickly as possible once operations resume after May 28, 2026.