Copyright 2025, Stone Loughlin & Swanson, LLP 

1. The violations are serious, involving $ in late medical benefits, income benefits, travel reimbursement, and attorney fees. Further, Respondent did not comply with the interest payment obligation in File No. 36758 until it received notice of enforcement action. Also, Respondent’s failure to comply with six DWC orders is a priority investigation under Tex. Lab. Code § 402.0235;
2. Respondent has a history of 195 administrative violations since , including 54 violations involving attorney fees, medical bill payment,• and travel reimbursement;
3. A penalty is necessary to deter future violations considering Respondent has had 195 administrative violations since ;
4. Respondent received an economic benefit from the prohibited acts to the detriment of multiple system participants; and Respondent is the 11th largest workers’ compensation insurance carrier in Texas and has a heightened awareness of the legal duty to comply with the Texas Workers’ Compensation Act and DWC rules.

On June 1, 2025, the revised Texas Administrative Code §133.30 (“Telemedicine, Telehealth, and Teledentistry Services”) went into effect.  As of that date, treating doctors—though not Designated Doctors or Required Medical Examiners—are permitted to perform MMI evaluations remotely via telemedicine.  The certifying doctor is only allowed to determine if MMI has been attained and, if so, to provide a determination of no permanent impairment. 
 
The rule specifies, “The term [telemedicine services] does not include an examination to assign an impairment rating” under Rule 130.1.  The injured worker must have been examined by the treating doctor for the same condition(s) at least once prior to the telemedicine exam, and he/she must agree to be certified in that manner. 
 
Injuries to be rated in this manner must qualify for no impairment, cannot require further treatment, and must be considered “minor” in accordance with Rule 130.2(a)(2).  That subsection allows a treating doctor to provide an MMI certification without scheduling an examination only if the injured employee is not receiving Temporary Income Benefits and has been released from treatment without the expectation of further treatment.

Copyright 2025, Stone Loughlin & Swanson, LLP

New Rollout: ICA Introduces Updated Form 101 – Employer’s Report of Accident

The Industrial Commission of Arizona (ICA) has officially launched its newly updated Form 101 – Employer’s Report of Accident as part of a modernization initiative directed by the Governor’s Office. A recent presentation by the ICA introduced the changes and provided important rollout details for employers and stakeholders.

What’s New?

This updated form aims to simplify the reporting process while ensuring critical information is captured:

• Simplified layout and removal of outdated or unnecessary fields.
• New fields added, such as dominant upper extremity, which plays a role in determining permanent disability awards.
• Web-based submission only – The Commission will not accept service via fax or mail.

Compliance Deadline

Per ARS § 23-908(G), employers must report workplace injuries within 10 days.
The new online-only form was released on April 7, 2025, and the ICA is allowing a 90-day transition period.
Effective Monday, July 7, 2025, the ICA will no longer accept faxed or mailed versions of Form 101.

Complete the new form here:
https://www.azica.gov/forms/employers-report-injury-form

Signature Process & Confirmation

After the form is completed:

1. The submitter will receive an email requesting a digital signature.
2. Once signed, a confirmation email will be sent along with the option to download a copy for records.

Access Issues

There was some confusion about the form’s visibility on the ICA Community page:

• It is supposed to appear under “Claims” as the second form at the bottom.
• However, if logged into the ICA account, the form may not appear due to a technical issue. ICA is working to resolve this.
• In the meantime, the direct link above remains functional.

Employer Outreach & TPA Clarification

ICA encourages carriers to notify employers of this change and recommend attending upcoming training sessions. More presentations are scheduled next week, and ICA may add additional sessions based on demand.

At the present time, Third-Party Administrators (TPAs) can submit this form on behalf of employers. The Commission has indicated they will issue separate direction concerning TPA processing of this form. Ritsema will update clients regarding any administrative guidance received from the Commission.

New Rollout: ICA Introduces Updated Form 105 – New Notice of Suspension Informational Meeting

The Industrial Commission of Arizona (ICA) has proposed a new Form 105 – Notice of Suspension, intended for use by carriers or self‑insured employers to formally notify injured workers when their workers’ compensation benefits are suspended (e.g. due to noncompliance or missed medical requirements).

⚠️ The form is not yet effective. To review and provide feedback, the ICA is hosting an informational stakeholder meeting on October 8, 2025.
🔗 Join the stakeholder meeting on 10/08/2025

Why this matters:

• Stakeholders can ask questions, offer commentary, and help shape how Form 105 will be implemented.

• Employers, claims professionals, attorneys, providers, and injured worker advocates should participate to stay ahead of compliance changes.

• After the meeting, ICA will issue a formal announcement of the effective date and procedural guidelines.

The Arkansas Court of Appeals recently dealt a blow to what’s known as the “Shipper Transport defense” when it found that a claimant was not barred from receiving workers compensation benefits for a torn bicep tendon even though he lied about having preexisting neck, back and shoulder issues on his post-offer/pre-placement health questionnaire which may have led to him being placed in a position which the employer likely would not have placed him in if they had been given an accurate medical history. Int'l Paper Co. v. Steward, 2024 Ark. App. 465, 700 S.W.3d 204. In 1979, the Arkansas Supreme Court established the Shippers Transport defense when it held that a workers compensation claimant would be barred from receiving workers compensation benefits if Respondents proved (1) that the employee knowingly and willfully made a false representation as to his/her physical condition, (2) that the employer relied upon the employee’s false representation, with such reliance playing a substantial factor in the hiring of the employee, and (3) that there was a causal connection between the false representation and the claimant’s injury.  Shippers Transp. of Ga. v. Stepp, 265 Ark. 365, 369, 578 S.W.2d 232, 234 (1979). In affirming the Full Commission’s and Administrative Law Judge’s narrow interpretation of Shippers Transport, the Arkansas Court of Appeals found that the Respondent Employer failed to satisfy the second prong of the test in establishing that they relied on the claimant’s false misrepresentations in hiring the claimant because the claimant had already been hired when he filled out the health questionnaire and lied about his preexisting conditions. Int'l Paper Co., 2024 Ark. App. 465 at 11.

Although the rationale behind the rulings of the Commission, Administrative Law Judge and Court of Appeals was fairly straightforward, it leaves employers beholden to the representations of newly hired workers regarding their physical limitations and preexisting injuries. At first glance, an Arkansas employer may want to avoid the dilemma that International Paper Company found itself in by having a job applicant fill out a health questionnaire before any employment offer is made so that the employer can figure out whether they have any open jobs that are suitable for the applicant’s physical condition while still being able to fall back on the Shippers Transport defense in case the applicant lies about their medical conditions. However, the Americans with Disabilities Act prohibits employers from asking a job applicant if they are disabled, asking about the severity or nature of any impairment, or having the applicant fill out a medical questionnaire before the employer makes a job offer. This leaves Arkansas employers in a legal Catch-22 because on one hand they are barred under federal law from asking applicants about their physical condition prior to making a job offer, and on the other hand, they are required to prove that they relied on the claimant's pre-offer misrepresentations about their physical condition in deciding to hire the claimant to successfully assert the Shippers Transport defense.

As suggested by Arkansas Workers Compensation Commissioner Michael Mayton in his dissenting opinion, “[t]he rule of law in the Shippers Transport case should be expanded beyond the actual moment of hiring to encompass the entire hiring process, including job placement.” Ronald Steward, Emp., Claimant v. International Paper Co., Emp., Respondent & Sedgwick Claims Mgmt. Servs. Inc., Carrier/TPA, Respondent, No. H109777 (Ark. Work. Comp. Com., May 2, 2023), at *13. Employers like International Paper Company should be able to rely on the representations of new employees completing post-offer medical questionnaires and undergoing medical examinations in determining which job most safely suits those employees’ medical conditions and physical restrictions without worrying that they’ll be stuck footing the bill for an aggravation of a preexisting injury that could have been avoided if the employee was honest about their medical history in the first place. 

Unfortunately, we do not know how the current Arkansas Supreme Court would have applied the Shippers Transport defense to the facts of this case because the case was not appealed after the Court of Appeals issued its opinion affirming the award of benefits to the claimant. Therefore, Arkansas employers should ensure that they ask one of the few questions allowed under the Americans with Disabilities Act during the interview process, which is whether the applicant can perform the specific duties of a job with or without reasonable accommodation. Arkansas courts have not yet considered whether an employer would satisfy the second prong of the Shippers Transport test if they proved that they relied on the claimant’s dishonest answer to the foregoing question in hiring the claimant. However, employers would undoubtedly have a better chance of successfully asserting the Shippers Transport defense in the above scenario than if they continued to only have new employees fill out post-offer health questionnaires or undergo medical examinations where the employee will be able to lie about their preexisting health condition and physical restrictions without the risk of being barred from receiving workers compensation benefits. When inquiring about the applicant’s ability to perform job duties though, it’s imperative that employers avoid asking if the applicant is disabled or probing further by asking about the nature or severity of that applicant’s disability because such questions would leave the employer at risk of being sued for violating the applicant’s civil rights by discriminating against them in the hiring process on the basis of their disability. 

NWCDN Ohio State Law Update - October 2025

Ohio Bureau of Workers’ Compensation Update

BWC Actions

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

On July 16, 2025, the Ohio Bureau of Workers’ Compensation (BWC) unveiled its new Substance Use Prevention and Recovery Program (SUPR). The innovative SUPR Program brings together the Drug Free Safety Program (DFSP), DFSP Safety Grants, and the Substance Use Recovery and Workplace Safety Program (SUR) under one umbrella designed to focus on workplace use and misuse of drugs and alcohol.  The voluntary program is designed to assist State Funded Employers in effectively preventing workplace injuries by integrating drug free initiatives into their workplace safety programs. The program changes are effective as of July 1, 2025.

According to BWC Administrator/CEO Stephanie McCloud, “…[C]ombining the key pieces of our previous programs into one creates a better and more efficient experience for our customers. The Substance Use Prevention and Recovery Program is focused on helping Ohio’s business manage and prevent substance use in their workplaces.”

Basic eligibility requirements for State Funded Employers or Public Employer Taxing Districts to participate in the SUPR program include: 1) being current on all payments due to the BWC; 2) having an active policy status; 3) not having cumulative lapses in coverage in excess of 40 days within the preceding 12 months; and (4) reporting actual payroll for the preceding policy year with payment of any additional premiums that may be due.

The SUPR program offers Employers a choice of four participation options: 1) Advance Level; 2) Basic Level; 3) Comparable Program; and 4) SUPR Reimbursement, with Advance Level and Basic Level participants being eligible for 7% and 4% bonuses respectively based upon their premium payments. Basic Level participation requirements include accident analysis training; written drug free workplace policies; employee education requirements; supervisor testing; drug and alcohol testing; and employee assistance. The Advance Level participation requirements include all of the Basic Level requirements in addition to random drug testing, and employee support and employee retention requirements. Those that choose the Comparable level program will be required to have a drug free workplace policy; education requirements; supervisor training; and drug and alcohol testing, while the Reimbursement Level does not require any training, reporting or drug testing like the other levels. Despite your level of participation, all employers are eligible for reimbursement of certain costs incurred in the management and prevention of substance use issues in the workplace.

What are some of the changes in the new SUPR program? Most participants will now automatically be eligible for reimbursement grants. Employers with “second chance” policies are now eligible for reimbursement of substance use assessments, and year-round enrollment in the program is also available. Additionally, an online portal is being developed for Employers to report on program requirement completion and request reimbursement of activities all in one place. For a summary of the changes to the program please click here.

Ohio Judicial Decisions

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Prime Roof Solutions, Inc. v. Industrial Commission, 2025-Ohio-4399 (September 23, 2025)

In a per curiam opinion of the Ohio Supreme Court, the 10^th District Court of Appeals decision was affirmed finding that some evidence in the record supported the Ohio Industrial Commission’s granting of the claimant’s VSSR petition and finding that the employer had failed to provide him with the required fall-protection gear. (See Adm.Code 4123:1-3-03(J)(1) (requiring that fall-protection gear be provided to employees exposed to hazards of falling). The 10^th District found that the employer failed to establish that Industrial Commission failed to perform a legal duty or abused its discretion in granting claimant’s application for VSSR award for violation of Adm.Code 4123:1-3-03(J)(1). The Court affirmed that some evidence supports commission’s finding that claimant was not assisting in installation of fall-protection system when he fell.

Permanent Total Disability (PTD)

State ex rel. Urban v. Wano Expediting, Inc., 2025-Ohio-3009 (August 29, 2025).

In another per curiam decision from the Ohio Supreme Court, the Court reversed the 10^th District Court of Appeals judgment and denied the writ of mandamus. The Ohio Industrial Commission had denied claimant’s application for PTD, finding that he retains the ability to perform sustained remunerative employment with limitations at a sedentary level. Claimant filed a complaint at the 10^th District seeking a writ of mandamus directing the Commission to vacate its order and issue a new order. The 10^th District granted the writ, concluding that the Commission had failed to comply with Ohio Admin. Code 4121-3-34)D)(3)(i), an administrative rule under which it was required to consider claimant’s allowed psychological conditions in combination with his allowed physical conditions.

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

NWCDN State News – West Virginia

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

October 7, 2025

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals mourns the loss of Justice Timothy Armstead who died at the age of 60 on August 26, 2025. He served on the Court for seven years with two terms as Chief Justice in 2020 and 2024. A former Speaker of the House of Delegates of West Virginia, Justice Armstead was a dedicated public servant to the State of West Virginia. Senior Status Justice John A. Hutchison will serve temporarily following Justice Armstead’s death. The press release and poignant remarks from the Supreme Court can be found here:

https://www.courtswv.gov/sites/default/pubfilesmnt/2025-08/Supreme%20Court%20Mourns%20Loss%20of%20Justice%20Armstead.pdf

Justice Thomas H. Ewing was publicly sworn in on October 6, 2025. Justice Ewing was appointed on August 6 by Governor Patrick Morrisey to fill the seat vacated by Justice Beth Walker, who retired earlier this year. He was previously a circuit judge in the Fifteenth Judicial Circuit (Fayette County), where he had served since January 2019 following his appointment by Gov. Jim Justice. He was then elected as a circuit judge in 2020 and reelected in 2024. Judge Ewing was an attorney at Kay Casto & Chaney, PLLC from 2004 until his appointment to the bench.

In the middle of the Fall Term of Court in 2025, the Court has not issued any signed opinions to date but has issued 16 memorandum decisions related to workers’ compensation cases. One memorandum decision case of note is discussed below.

Intermediate Court of Appeals of West Virginia

In the Fall Term of Court in 2025, the Court has issued one signed opinion to date and has issued 14 memorandum decisions related to workers’ compensation cases.

Expenses for Workers’ Compensation Insurers Will Continue to Rise Due to WV Courts’ Deference to Claimants With Preexisting Conditions

One case of note spans the spring and fall terms of court in the ICA and in the Supreme Court of Appeals is Abby L. Boyes v. Hospice of Southern West Virginia, Inc..

The West Virginia Intermediate Court of Appeals continues to review and analyze compensability issues under the Moore v. ICG Tygart Valley decision issued by the West Virginia Supreme Court of Appeals.  In a recent Intermediate Court decision, Abby L. Boyes v. Hospice of Southern West Virginia, Inc., the claimant sought to add additional diagnoses to her workers’ compensation claim.  She was injured at work in October 2020 when a bariatric bed rolled over her right foot.  Claimant was initially seen at MedExpress where she was diagnosed with a contusion of the right foot.  An x-ray revealed degenerative changes and a slight angulation of a toe that was attributed to an old, healed injury.  The claim administrator held the claim compensable for contusion. 

A month after the injury, the claimant saw a podiatrist and was diagnosed with capsulitis of the right foot, Morton’s neuroma of the third interspace of the right foot, and other enthesopathies.  The claimant requested the diagnoses “capsulitis of the right foot” and “Morton’s neuroma” be added as compensable conditions in her workers’ compensation claim.  The claim administrator denied those requests based on a physician review opinion that Morton’s neuroma is rarely a traumatic condition.  However, the physician reviewer noted that the claimant had a crushing injury of the foot.

The claimant returned to work part time.  In June 2021, the claimant saw anther physician for foot complaints.  That physician opined the foot swelling could be mild residual inflammation or it could be due to the claimant’s weight and diabetes.

In August 2021, the claimant requested the following diagnoses be added as compensable conditions in her workers’ compensation claim: “crushing injury of the right foot, disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.”  The claim administrator denied the requested diagnoses on the basis of a physician opinion finding that neither x-rays nor an MRI of the foot revealed evidence of tendon or ligamentous disruption to substantiate a finding of capsulitis.

The claimant protested the denial and the issue reached the Intermediate Court of Appeals, which remanded the issue to the West Virginia Workers’ Compensation Board of Review requesting a more detailed analysis of the diagnosis of crushing injury of the right foot, ligament disorder, and Morton’s neuroma. 

When the issue reached the Intermediate Court of Appeals for the second time, the claim argued that the diagnoses should be added to her claim and that she was entitled to the presumption established under the Moore case which held:

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 symptom was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards.  There must still 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.

247 W. Va. 292, 294, 879 S.E.2d, 779, 781 (2022).  The Intermediate Court analyzed this case under the Moore standard as well as the standard outlined in Gill v. City of Charleston, which held “[a] noncompensable 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 injury may be found compensable.”  236 W. Va. 737, 783 S.E.2d 857 (2016).

The Intermediate Court found that the Board of Review had properly denied the diagnoses of disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.  However, the Court found the claimant established the diagnosis of a crushing injury of the foot was causally related to the workplace injury and that the Moore presumption was not rebutted even though the claimant had prior foot injuries.  The Intermediate Court noted that the Board of Review had incorrectly reasoned that because the other diagnoses were rejected, the crushing injury must also be rejected.  The Intermediate Court also faulted the Board of Review for failing to acknowledge that the claim administrator’s physician reviewer had commented that the claimant had a crushing injury.  As a result, the Intermediate Court reversed the Board of Review on the crushing injury diagnosis and held that the crushing injury diagnoses must be held compensable in the workers’ compensation claim. 

In September 2025, the West Virginia Supreme Court of Appeals affirmed the Intermediate Court’s decision in a Memorandum Decision, finding no reversible error. See Boyes v. Hospice of Southern West Virginia, Inc., No 25-200, (W. Va. September 12, 2025) (memorandum decision).

This case demonstrates West Virginia courts’ recent move to find for claimants if they can show their preexisting conditions were not symptomatic immediately before the work injury.  In the Boyes case, the claimant had a prior injury to the same foot as well as other comorbidities that could be causing her complaints.  In fact, she had seen her podiatrist six years before the workplace injury for peroneal tendinitis, two metatarsal stress fractures, and chronic ankle swelling.  Moreover, the IME doctor who examined her in this case found no objective evidence of disease from the work injury.  Rather than rely on Gill to find the diagnosis to be noncompensable because of preexisting conditions, the Intermediate Court relied on Moore to find for the claimant, requiring the claim administrator to hold an additional diagnosis as compensable.  Decisions like these will continue to cause more expense for workers’ compensation insurers who will be required to add diagnoses to claims when the diagnoses are likely related to symptoms from preexisting conditions.  It will also result in more litigation when diagnoses are denied based on preexisting conditions. 

Compensable Dust Exposure and Board of Review Standard of Evidence Review

In the case of Boyce v. Quinwood Coal Company, LLC, 2025 WL 2792731, (W. Va. Ct. App. 2025), the ICA issued a written opinion in the consolidated appeal of two occupational pneumoconiosis (OP) claims where the petitioners argued the West Virginia Workers’ Compensation Board of Review (BOR) failed to properly examine the evidence and erred in determining the petitioners were not exposed to hazardous occupational dust during employment. Judge Dan Greear wrote the opinion of the ICA that concluded that the BOR failed to analyze all the evidence in the records of dust exposure in both of the underlying cases. Accordingly, the ICA vacated the orders and remanded both matters to the Board.

In both cases the employee presented evidence regarding exposure to occupational dust during the course of employment. The evidence also consisted dust sampling records demonstrating the individual employee was not exposed to hazardous levels of airborne dust during his employment that exceeded the limits established by MSHA, based on the dust sampling result for the respective period of employment. The claim administrators found that the employees were not exposed to the hazards of dust during employment.

Under West Virginia Code § 23-4-1(b) (2024), a claimant seeking workers’ compensation benefits for OP must show exposure to the hazards of OP during their employment and contraction of OP. Additionally, a claimant must prove exposure in the State of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to such hazards, or for any five of the 15 years immediately preceding the date of his or her last exposure. The Court notes that

‘In a claim for occupation pneumoconiosis under the Workmen’s Compensation Law, a ‘hazard,’ as contemplated by [West Virginia] Code [§] 23–4–1, as amended, exists in any work environment where it can be demonstrat[ed] that there are minute particles of dust in abnormal quantities.’ Syl. Pt. 3, Fenton Art Glass Co. v. West Virginia Office of Ins. Comm’r, 222 W. Va. 420, 664 S.E.2d 761 (2008). Thus, to establish a compensable OP claim, the burden is on the claimant to show exposure to abnormal quantities of dust exposure while in the workplace.

In defending a claim for OP, employers may rely upon W. Va. Code of State Rules § 85-20-52.2 (2006) which states in relevant part:

If the employer submits credible evidence demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and/or MSHA regulations for the dust alleged by the injured worker, then the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may consider that the dust exposure alleged by the injured worker does not suffice to satisfy the exposure requirements of W. Va. Code §§ 23-4-1(b) and 23-4-15(b) only for the period(s) covered by the sampling or testing.

The Court found that Section 85-20-52.2 does not mandate a decision in favor of the employee, even if all requirements of W. Va. Code § 23-4-1(b) are met. Similarly, the wording of section 85-20-52.2 permits credible dust sampling results to be considered as sufficient evidence to defeat liability, but the regulation “does not serve as an automatic immunity provision for the employer. Rather, as expressly stated in West Virginia Code § 23-4-1(f), a ‘consideration of all the circumstances’ is necessary to determine if a claimant has met his or her burden for establishing a compensable workers’ compensation claim.” Finally, as the West Virginia Legislature expressly stated in W. Va. Code § 23-4-1g(a), in part, “[u]nder no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party’s interests or position.” Moreover, the Court noted, in this same provision, the legislature again noted the necessity of “weighing all of the evidence.”

The ICA would not reweigh the Board of Review’s finding the reports and deposition testimony of the employers’ experts were credible and admissible for purposes of section 85-20-52.2.4. The Court noted that the employers’ certified industrial hygienist testified as an expert regarding the procedure and methodology for air quality sampling and testing at the employers’ respective facilities, and the permissible dust levels. The ICA deferred to the Board’s findings regarding the admission of evidence, including the testimony and reports of the industrial hygienist demonstrating compliance with MSHA permissible exposure levels, and find no error in that regard.

While the Board was not clearly wrong in admitting and considering evidence regarding the employers’ compliance with MSHA permissible exposure levels, the ICA found error in the Board of Review’s failure to consider all of the evidence in the records. The Court particularly faulted the Board of Review for its one sentence finding that summarily ruled in favor of the employers based on the evidence of exposure levels, offering no analysis of the evidence presented by either petitioner. While certainly compelling, the evidence related to the testing of the exposure levels at the employers’ facilities “was but one piece of the evidence presented to the Board for consideration and was not alone dispositive of petitioners’ claims[ ]” and the Board of Review “made no credibility determinations and offered no analysis of Mr. Boyce’s testimony regarding his exposure to occupational dust on a daily basis, or Mr. Sargent’s testimony that the sampling levels were not indicative of the typical work conditions.” The ICA remanded the case to the Board of Review for an analysis of all the evidence submitted in each of these claims to substantiate its findings.

Moore v. United Coal Company, LLC,  No. 25-ICA-137, 2025 WL 2781461 (W. Va. Ct. App. September 30, 2025) (memorandum decision)

In Moore, the Intermediate Court of Appeals affirmed the March 7, 2025, Board of Review order that affirmed the claim administrator’s February 26, 2024, claim rejection order. Claimant filed a CTS claim application based on his work in the underground coal mine.

The Board concluded that Mr. Moore did not establish by a preponderance of the evidence that he developed bilateral CTS in the course of and resulting from his employment with United. The Board found that Dr. Nabet’s report, which attributed Mr. Moore’s CTS to diabetes, was persuasive. The Board weighed the factors set forth in West Virginia Code § 23-4-1(f) and found that considering the ten years between Mr. Moore’s last date of employment with United and his diagnosis of CTS, his worsening diabetes, and Dr. Nabet’s report which attributed Mr. Moore’s CTS to his diabetes, the record does not establish that there is a direct causal connection between Mr. Moore’s employment with United and his CTS. Mr. Moore argues that the Board failed to properly consider his testimony and statements to Dr. Kominsky that he developed symptoms during his last two or three years of employment and that Dr. Nabet erroneously found that the symptoms developed along with the diabetes. However, we note that the Board pointed out that Mr. Moore’s symptoms progressed over ten years following the date he was last exposed to the hazard of CTS.

Although Mr. Moore argues that the Board erred in disregarding Dr. Kominsky’s report, the Board specifically found that Dr. Kominsky did not consider Mr. Moore’s diabetes. On the other hand, the Board found that Dr. Nabet’s report addresses the significance of Mr. Moore’s diabetes as documented in the medical records and is more complete in addressing compensability. The ICA deferred to the Board’s credibility determinations and weighing of the evidence.

The ICA found that the Board of Review was not clearly wrong to find that Dr. Nabet’s medical opinion was more credible than Dr. Kominsky’s because he considered Claimant's diabetes condition in the compensability analysis of the CTS diagnosis.

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

By: Kisa P. Sthankiya

In Panda Express, Inc. v. Illinois Workers’ Compensation Commission, 2025 IL App (4^th)  240771WC-U, the Workers’ Compensation Division of the Illinois Appellate Court reversed the decision of the Circuit Court of Boone County and reinstated the decision of the Commission. 

The claimant on September 25, 2018 was training new workers on how to properly transfer hot oil from the fryer to the disposal area.  The hot oil spilled onto the claimant’s feet, primarily onto his left foot and ankle.  It also splashed onto his right foot. 

The claimant was treated for his burns which were assessed to be at the third degree.  The claimant was hospitalized through October 9, 2018.  At discharge, his final diagnoses were a third degree burn of multiple sites of the left ankle and foot, second degree burn of multiple sites of the right ankle and foot and cellulitis of the left lower limb. 

The claimant treated through May 8, 2019 when he was released to return back to work full duty. 

At the time of trial, claimant was no longer working a second job transporting gutters to local building sites.  The claimant admitted that the right foot burns were less severe and had “kind of disappeared.”  However, the burns to his left foot were primarily on the top and side of the left foot.  The size of the skin graft was approximately 8” x 4” in size.  The skin graft area was markedly different from the surrounding skin with shiny appearance and no hair growth.  The right foot also exhibited circular burn areas on the top of the foot and ankle.  The burn areas on the feet and left leg were shown to the arbitrator and counsel.  Photographs were also submitted into evidence of the burns.

The arbitrator found that claimant had sustained disfiguring injuries to both of his feet and his left leg, and awarded 58 weeks of disfigurement benefits pursuant to Section 8(c) of the Act.   Specifically, the arbitrator awarded 10 weeks of disfigurement of the left leg, 3 weeks of disfigurement of the right foot and 45 weeks of disfigurement of the left foot.  The five factors under Section 8.1(b) were not addressed as the arbitrator noted he was not awarding any permanency under that provision.  The Commission affirmed and adopted the arbitrator’s decision in its entirety.

The employer appealed the Commission’s decision to the Circuit Court of Boone County who held that the claimant was not entitled to benefits for disfigurement under Section 8(c) of the Act because that section does not authorize benefits for disfiguring injuries to the feet.  The Circuit Court held that the foot was not covered under the list of body parts under Section 8(c).  Relying on the medical dictionary definition of leg, the Circuit Court could not conclude that the foot would be considered as part of the leg below the knee.  The Circuit Court instead awarded PPD benefits under Section 8(d)(2) of the Act. 

On appeal to the Appellate Court, the employer challenged the Commission award for benefits for disfigurement to the claimant’s feet under Section 8(c) because disfigurement of the foot was not listed as a compensable injury under the section.  The employer further argued that benefits under Section 8(d)(2) only applied if the claimant had sustained serious and permanent injury “not covered by either Section 8(c) or 8(e).”  The employer further argued that the claimant failed to present evidence of impairment of his foot which would have entitled him to benefits under Section 8(e). 

The key issue presented to the court was whether the foot is included within the definition of “leg below the knee” under Section 8(c) of the statute.  The court had to ascertain and give affect to the intent of the legislature.  The best indicator of the legislature’s intent was the plain language of the statute itself which would be given its plain and ordinary meaning. 

The court reviewed the definition of the leg under multiple sources including website citations to RxList, Health Line, Meriam Webster online dictionary, Britannica and Wikipedia.  They noted that all of these sources included the foot as part of the leg.  The court rejected the employer’s argument that the medical textbook definition should be followed which defines the leg as a part of the body extending from below the knee to only the ankle. The court noted that words in legislative enactment should be given their commonly understood meaning as used by the public as opposed to the meaning ascribed to the word by medical specialists.  The various sources that the court had cited explicitly distinguished the common understanding of the word from the specialized medical terminology and included the foot as part of the leg.  

The court addressed the employer’s argument that Section 8(e) of the Act showed that the legislature did not intend to define the foot as part of the leg because it listed them as separate body parts under that section.  The court distinguished 8(e) from 8(c) as 8(e) covered impairment and not disfigurement.  They noted that impairment differs according to the body part that is injured.  Whereas disfigurement could be equally harmful wherever it occurs. 

The court reversed the judgment of the Circuit of Boone County and reinstated the Commission’s decision awarding benefits for disfigurement of the left foot, right leg and left leg under Section 8(c) of the Act.   

By: Jigar S. Desai

In Ryba v. Illinois Workers’ Compensation Commission, 2025 IL App (2d) 230596WC-U, the Workers’ Compensation Commission Division of the Illinois Appellate Court for the Second District reversed the circuit court and reinstated the decision of the Commission.

Mary Catherine Ryba, the claimant, filed two applications for adjustment of claim in 2016 under the Workers’ Compensation Act, 820 ILCS 305/1, et seq., seeking benefits for work-related back injuries sustained while employed by Libertyville Manor Extended Care. 2025 IL App (2d) 230596WC-U at ¶4. The employer filed several motions for hearing in 2018 and 2019. After several procedural delays, the case was set for a hearing on February 18, 2020. Id. The claimant failed to appear for trial, and the arbitrator dismissed the case for want of prosecution.

On April 29, 2021 — 436 days later — the claimant moved to reinstate the case. 2025 IL App (2d) 230596WC-U at ¶5. The claimant argued she never received notice of the dismissal. Her counsel also cited a lack of receipt of a notice of case dismissal. Her counsel also claimed there were disruptions caused by the COVID-19 pandemic, as well as a death in the legal team’s family.

Despite the significant delay, the arbitrator reinstated the case. The arbitrator primarily based the decision to allow reinstatement on the claimant’s counsel’s claim that his office never received a written notice of the dismissal and the fact that the Commission was shut down during the period when the case was dismissed and the date a petition to reinstate was due. 2025 IL App (2d) 230596WC-U at ¶7. The arbitrator also found it significant that the Commission had suspended the mandatory trial “Red Line” from March 2020 to November 2021. Id. The arbitrator then proceeded to hear the case and awarded benefits to Ryba.

The Commission affirmed the arbitrator’s findings in full, including the decision to reinstate. The employer appealed to the circuit court.

The circuit court reversed. The circuit court found the arbitrator lacked jurisdiction to vacate the dismissal with prejudice because the statutory 60-day period to file for reinstatement had passed. 2025 IL App (2d) 230596WC-U at ¶8. The circuit court noted that the notice of dismissal was sent to all parties on February 19, 2020, and that caselaw confirms receipt of notice is established upon the date of mailing with confirmation of the sender. Id. See also Talmage v. Union Cent. Life Ins. Co., 315 Ill.App.623, 43 N.E.2d 575 (1st Dist. 1942); Tabor & Co. v. Gorenz, 43 Ill.App.3d 124, 356 N.E.2d 1150, 1 Ill.Dec. 868 (2d Dist. 1976).

The circuit court also found that even if the Commission had jurisdiction, the factual determination of the arbitrator did not support reinstatement, and found that the Commission failed to consider evidence against reinstatement.

On appeal to the appellate court, a number of issues were presented:

1. Did the arbitrator and the Commission have jurisdiction to reinstate a case dismissed for want of prosecution more than 60 days after the dismissal?

2. Did the Commission abuse its discretion in allowing reinstatement based on the claimant’s denial of notice and surrounding circumstances?

3. Were any of the employer’s additional challenges to the merits of the award preserved for appellate review?

The appellate court reversed the circuit court and reinstated the Commission’s decision in full.

The appellate court held that under Illinois law, a party’s denial of receipt of a dismissal notice creates an issue of fact. Therefore, the Commission was within its authority to assess credibility and determine that the 60-day reinstatement clock had not begun to run. 2025 IL App (2d) 230596WC-U at ¶8. The court cited Talmage, supra, in affirming that any determination of whether notice of dismissal was received is a factual issue and therefore the province of the Commission. The appellate court noted the claimant’s denial of receipt of notice rebutted the presumption of mail delivery of notice and created a question of fact for the Commission to decide. The appellate court therefore concluded that the arbitrator and Commission had jurisdiction.

The court found no abuse of discretion in the Commission’s decision to reinstate. The appellate court found the unique combination of the COVID-19 pandemic, procedural confusion regarding the “Red Line,” and personal hardship experienced by the claimant’s counsel supported the Commission’s conclusion that reinstatement was warranted despite the delay. 2025 IL App (2d) 230596WC-U at ¶15. The appellate court was unable to say the Commission’s decision was arbitrary, fanciful, or unreasonable. The court reiterated that it was not its role to reweigh evidence or substitute its judgment for that of the Commission.

Finally, the appellate court rejected the employer’s arguments that the appellate court review the award of the arbitrator. The employer did not raise these issues before the circuit court. The appellate court found the failure to raise issues as to the award resulted in their forfeiture, citing Fernandes v. Industrial Commission, 246 Ill.App.3d 261, 615 N.E.2d 1191, 1197, 186 Ill.Dec. 134 (4th Dist. 1993).

This case reaffirms the principle that when receipt of notice is denied, the presumption of delivery can be rebutted, and jurisdictional timelines under administrative rules may not bar relief if material factual disputes exist. The court also emphasized the broad discretion afforded to the Commission in managing procedural matters, especially under exceptional circumstances such as the COVID-19 pandemic.