State News

The Pennsylvania Supreme Court issued a recent decision on 03/20/25 relative to the case of Schmidt v. Schmidt, Kirifides & Rassias, PC (WCAB), No. 32 MAP 2024, 2025 WL 864223 (Pa. Mar. 20, 2025) which may significantly impact payment for “medical treatment” in Pennsylvania.  This decision pertained to reimbursement to a Claimant for CBD oil which was purchased on account of the work injury.  The Court affirmed the Commonwealth Court, which required the employer pay for the claimant’s CBD oil.  Further, the Pennsylvania Supreme Court set forth a broader interpretation of what constitutes “medicine and supplies” under Section 306(f.1)(1)(i) of the Act.  More significantly, and troubling from the defense perspective, the Court found that the cost-containment provisions of the Act apply to providers, they do not apply to the Claimant.

The Claimant in this matter is a workers’ compensation claimant’s attorney who injured his low back putting files into a bag. Instead of proceeding to incase his use of opioids, the Claimant elected to use CBD oil, which he indicated proved effective in managing his pain.  This also led to less narcotics and avoiding surgery.  There are questions from reading the decision if the recommended CBD oil was to be applied topically with the Claimant, then electing to get oral CBD oil.  The Claimant purchased this “medicine” at a natural remedy store and submitted the receipts for reimbursement which were not paid for by the Employer/Carrier on the basis that CBD oil was not a pharmaceutical drug.  The Claimant filed a penalty petition due to failure to pay for the treatment and penalties were awarded by the Workers’ Compensation Judge, who determined that CBD oil qualified as a “supply” under the Act and the Medical Cost Containment Regulations (MCCR), which require submission of a bill on a HCFA form and a corresponding medical report concerning the treatment, were not binding upon the Claimant.  These regulations also address re-pricing of medical treatment and have a provision that should a Medicare payment mechanism not exist for a particular treatment, accommodation or service, the amount of payment to be made to the healthcare provider is 80% of the usual and customary charge or the actual charge, whichever is lower. 

The Appeal Board was divided and reversed by finding that CBD oil was not a “supply” under the Act given it was not proven to be safe or effective by the FDA and because submission of a receipt did not trigger the payment obligation under the MCCR.  As previously intimated, the Commonwealth Court reinstated the Judge’s decision and found CBD oil was a medicine and supply as it was “prescribed” by the doctor’s office and managed the Claimant’s pain lessening opioid use and allowing the Claimant to avoid surgery.  The Court found there was no requirement for FDA approval of treatment under the Act and the billing requirements of the Act did not apply to the Claimant, who was not a healthcare provider. 

The Pennsylvania Supreme Court noted that the terms “medicines” and “supplies” was not defined under the Act.  It considered such words to be a singular phrase of “medicines and supplies” in undertaking its analysis.  Ultimately the Court felt this meant “any item that is part of a health care provider’s treatment plan for a work-related injury.” As for the FDA concerns, the Court indicated that such challenges are better left to be addressed via Utilization Review as to whether the treatment is reasonable and necessary.

This Decision is troubling given its potential implications moving forward.  The MCCR in Pennsylvania are now over 30 years old and it is well past time for them to be reviewed and revised so as to address changes in medicine and the current reality of medical care.  It is undeniable that the Workers’ Compensation Act requires payment for reasonable and necessary medical expenses which are causally related to the work injury.  Now, with where the Court has gone in terms of indicating that the MCCR do not apply to injured workers seeking reimbursement of “medicine and supplies”, the reasonableness and necessity portion of the Act has essentially been circumvented.  While the Court said that a Utilization Review should be pursued to address the issue of the lack of efficacy and approval by the FDA, the Defendant/Employer/Carriers have lost the opportunity to review treatment to determine if it is reasonable and necessary because the Court has said that the MCCR, which contain the provisions allowing for review of the reasonableness and necessity of treatment to not apply to the Claimant.

All that needs to happen is for a physician to not necessarily “prescribe” treatment but rather to just make a recommendation.  This can be for anything that could be a “medicine and supply”, CBD, medical marijuana, sleep aids such as beds, vitamins, hot tubs, etc. and if the Claimant then purchases the recommended “treatment” there is not a specific treatment that is subject to review (like 5 mg of Vicodin 4 x/day).  It is up to the Claimant to decide what he is to get and how much.  It is an extreme example but what would occur if a receipt was submitted for caseloads of CBD products where the volume would obviously not be able to be utilized except over years so that it was excessive so as to not be reasonable or necessary in terms of the amount.  There cannot be a utilization review filed on a Claimant and the medical provider, who does not write a specific prescription or even pick out the product or amount (where there is just a recommendation for CBD oil without more as to type, dosage, potency, frequency) as that is not something that is able to be reviewed.  

In the context of medical marijuana, it is the Claimant who picks everything.  They get approved for a card and then they pick out the amount, the form (vape, leaf, etc), the strain (potency), etc. the If the Claimant cannot be subject to a Utilization Review by a peer of the same medical specialty (as would we have Claimant’s then reviewing other Claimant), then the reasonableness and necessity of treatment cannot be reviewed and the Defendant/Employer/Carrier is now in a position where they may be required to pay for treatment, contrary to the Act, which is not reasonable and necessary.  The Court makes blanket statements about treatment needing to be paid for that is reasonable and necessary and that if there is a challenge a Utilization Review can be filed; however, it apparently does not know this is how the Act works in connection with the Medical Cost Containment Regulations.  The practical reality is, in this newly created situation of reimbursements to the Claimant, this is not something that works so that now there is no mechanism to address whether “treatment” to be reimbursed is reasonable and necessary and it cannot be re-priced.  If the Claimant gets something recommended by a doctor and submits a receipt, it apparently is now to be reimbursed or the Employer/Carrier may be subject to penalties even if the treatment is not reasonable and necessary because that cannot now apparently be addressed.    

August 2025

Tennessee Workers' Compensation Legislative Changes

Tennessee found less changes in its workers’ compensation legislation in 2025 than it did last year, but there are still several worth noting, including: Bureau’s Administration changes (SB1309/HB0128); an Advisory Council extension (SB0050/HB0228); PTSD Extensions (SB0289/HB0310); addition of cancers to firefighter related legislation (SB0288/HB0482); and Administrative Dissolution changes (SB0306/HB0459-Pub. Ch. 113) (SB0669/HB1226).

The first of these bills, SB1309, makes a variety of changes, including, but not limited to (1) removing the end date of June 30, 2025 for the Vocational Recovery Fund; (2) increasing the minimum age requirement to serve as a workers’ compensation judge to 35 years, and the minimum number of years of experience to seven; (3) increasing the number of terms that a workers’ compensation judge may be appointed after the expiration of their initial term to three additional terms (there is an additional note on service of a less-than-full term); and (4) extension of the sunset of attorney’s fee award to June 30, 2030. There also exists in this bill the addition of fees related to burial, cremation, or other lawful means of disposition of human remains when looking at attorney’s fees.

Senate Bill 0050 extends the advisory council on workers’ compensation to June 30, 2031, amending T.C.A. Title 4, Chapter 29, and Title 50, Chapter 6.

The next change is seen in alterations to the James “Dustin” Samples Act. The changes now create a presumption that the diagnosis of a law enforcement officer or emergency medical responder with post-traumatic stress disorder as the result of responding to certain incidents was incurred in the line of duty for purposes of workers’ compensation coverage. This amends T.C.A. Title 7, Chapter 51, and Title 50, Chapter 6.

Further changes regarding first responders were reflected in Senate Bill 0288 which effected the addition of prostate cancer, breast cancer, and pancreatic cancer to the list of cancers for which a presumption exists that the ailment arose out of employment. This exists for full-time firefighters and must be combatted by contrary evidence shown by competent medical evidence. This alters T.C.A. §7-51-201.

The final noteworthy legislative changes in Tennessee for workers’ compensation are reflected in SB0306-Public Chapter 113. This piece of legislation allows the State to dissolve a business if that business knowingly files false information with the state, and/or if that business has ties to foreign adversaries. This is determined by the United States Secretary of Commerce. Lastly, Senate Bill 0669 deletes all references to the World Health Organization and instead requires a pandemic to be declared by the federal Centers for Disease Control and Prevention. It also requires a subsequent declaration of a state of emergency by the governor to issue executive orders and directives related to pandemics.

While not as monumental as years prior, the legislative changes seen in 2025 are nonetheless necessary to learn, and keep in mind, as attorneys and employers continue to manage the daily challenges of Tennessee Workers’ Compensation Law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Copyright 2025, Stone Loughlin & Swanson, LLP

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

Copyright 2025, Stone Loughlin & Swanson, LLP

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

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

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

Copyright 2025, Stone Loughlin & Swanson, LLP

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

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

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

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

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

Copyright 2025, Stone Loughlin & Swanson, LLP

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


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

Copyright 2025, Stone Loughlin & Swanson, LLP

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

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

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

Copyright 2025, Stone Loughlin & Swanson, LLP