State News

LEGISLATIVE UPDATE

The legislature in the 2025 session attempted a “fix” of what many viewed as an incorrect decision from the Connecticut Supreme Court, Gardner v. Department of Mental Health and Addiction Services, 351 Conn. 488 (March 18, 2025) (see below review of that decision). As a result of Gardner, the Administrative Law Judges were given discretion to award ongoing temporary partial benefits notwithstanding that the claimant may have achieved maximum medical improvement. This was viewed as a significant expansion of employers’ exposure for workers’ compensation benefits.

The 2025 legislation (Public Act 25-12) is designed to resolve the expansion of benefits brought by the Gardner decision and involved some give-and-take between those legislators who believed that certain benefits should be increased and those that did not want the Gardner decision to be applied. The legislation made the following changes:

·         For all claims from July 1, 1993 forward, a Judge shall be required to establish maximum medical improvement and place the claimant on permanency benefits if the claimant is receiving temporary partial benefits. If the claimant is totally disabled, he/she will be entitled to ongoing benefits for total disability notwithstanding the fact that he/she may have been placed at maximum medical improvement.

·         For claims on and after July 1, 2025, C.G.S. § 31-308(b) will be expanded to allow for permanency of the esophagus (180 weeks) and the intestinal tract (347 weeks). Additionally, the permanency benefits for the cervical spine shall be increased from 117 weeks to 208 weeks.

·         For any death claim where there is no presumptive dependent or dependent in fact, the parents of the decedent employee shall be entitled to receive benefits for 312 weeks.

·         C.G.S. § 31-308a was amended to allow for a supplemental 60 weeks of post-specific benefits, inclusive of any benefits awarded pursuant to § 31-308a(a). To qualify for benefits under this provision, the claimant must be unable to perform his/her usual work and either be actively engaged in a vocational rehabilitation service or equivalent program, or have completed this service or program.

·         A working group will be established “to study rehabilitation services available” to employees with work injuries.  The working group will review whether rehabilitation services are adequately funded and will consider incentives, including stipends, to encourage the utilization of rehabilitation services.

The only retroactive application of the statute deals with the Gardner decision and essentially states that for all claims from July 1, 1993 to the present time a Judge must award permanent partial disability benefits if maximum medical improvement has been reached and the claimant is capable of work. We have some question as to whether this retroactive legislation will stand up to judicial review. In Connecticut, normally the “date of injury” rule will apply, which means that the version of the statute in effect as of the date of injury controls what the rights and liabilities of the parties are. This retroactive legislation is counter to that rule. Moreover, there is question as to whether the retroactive application of this substantive change to the statute will pass constitutional muster under both the state and federal constitutions.

The permanency for the esophagus and intestinal track probably will not affect many claims. On the other hand, the increase of permanency for the neck will provide enhanced benefits to many injured employees. The increase in permanency for the neck seems to make sense when compared to the number of weeks that are allowed for permanency to the lumbar spine (374 weeks).

The expansion of death benefits to parents of a deceased employee was brought about by the recent death of a young State of Connecticut employee who was struck by a drunk driver while he was working on a road crew. No workers’ compensation benefits were paid since the young worker was not married. Many found this result to be unfair and therefore sought this legislative change.

The increase of § 31-308a benefits to 60 weeks may provide a substantial increase to  injured workers who are not able to return to their normal jobs and/or who have been assessed low permanency ratings. It will also likely increase the number of individuals who will be willing to participate in the state’s vocational retraining program. The legislation as passed is vague as to whether there are 60 weeks of benefits for each body part that is injured or whether 60 is the total number of supplemental weeks regardless of the number of body parts involved. We expect claimants’ counsel will attempt to seek supplemental awards of 60 weeks for each body part that is injured.

We interpret the statutory changes to § 31-308a to allow the employer to take credit for any  § 31-308a benefits previously paid.  For example, if the claimant had been paid a permanency award of 10% of the lumbar spine and received 37.4 weeks of § 31-308a benefits then the net additional benefits that could be claimed amounts to 22.6 weeks (60 supplemental weeks minus the 37.4 weeks previously paid). If this interpretation is correct then the claimants who have received a lower number of weeks of § 31-308a previously will benefit more from this new legislation; for example, a claimant who received a 5% of the leg and equivalent § 31-308a benefits for 7.75 weeks might be able to receive an additional 52.25 weeks.

Should you have any questions regarding this new legislation, please do not hesitate to contact us.

CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

 NEW STATUTE BOOKS

The Commission has just released new red statute books with all of the Connecticut Workers' Compensation statutes, regulations and related statutes in it.  If anyone needs a copy please contact us and we will send a book to you.

MEMORANDUM 2025-02

Effective July 7, 2025, where a claimant cancels a scheduled Commission Medical Examination less than two business days prior to the date of the examination, the Commission recommends that the physician’s office limits the cancellation fee to $300.00. There shall be no cancellation fee assessed for CMEs cancelled more than two business days prior to the exam. Where a claimant fails to attend a Commission Medical Examination and does not call or otherwise alert the physician’s office prior to the appointment time, the Commission recommends that the physician’s office limit the no show fee to $450.00.

In either situation, when determining responsibility for the payment of the late cancellation or no-show fee, the parties and the administrative law judge should implement a fault-based approach that takes into account the circumstances surrounding the claimant’s failure to attend the examination.

MEMORANDUM 2024-07

Memorandum 2024-07 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates.  The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2024 is $1,654.00 (based on the estimated average weekly wage of all employees in Connecticut).  The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2024 is  $1,191.00 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).

BURIAL EXPENSES

As of January 1, 2025, the burial fee for deaths covered under the Workers’ Compensation Act is $14,371.23 based on the overall 2024 CPI-W increase for the northeast of 3.5%. Connecticut General Statutes Section 31-306 was amended in 2021 to reflect that the compensation for burial benefits will be adjusted by the percentage increase in the consumer price index for urban wage earners and clerical workers in the Northeast as defined in the United States Department of Labor’s Bureau of Labor

Statistics.

MILEAGE REIMBURSEMENT

As of January 1, 2025 the mileage reimbursement rate is 70 cents per mile.

Previously on January 1, 2024, the mileage reimbursement rate was 67 cents per mile, on January 1, 2023 the mileage rate had been 65.5 cents per mile and as of July 1, 2002  the rate had been at 62.5 cents per mile.

MEMORANDUM 2024-03

Effective July 1, 2024, wage statements should be attached to all Voluntary Agreements. If the claimant is concurrently employed, wage statements from all employers should be included with the submission. Failure to attach a wage statement(s) will result in the rejection of the Voluntary Agreement.

WORKERS’ COMPENSATION PORTAL

 The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties.  This is quite a useful site and is a different website than the Commission’s main site.  It can be found at:

http://stg-pars.wcc.ct.gov/Default.aspx

 NEW COMPENSATION REVIEW BOARD PANEL

The new CRB panel beginning January 1, 2025 will be Administrative law Judges Peter C. Mlynarczyk and Daniel E. Dilzer along with Chief Administrative Law Judge Morelli.

 CASE LAW

PATRICIA BUCHANAN, SURVIVING SPOUSE OF PAUL BUCHANON V. TOWN OF EAST HARTFORD/POLICE DEPARTMENT,  233 Conn. App. 698 (2025), pet. Cert pending

The claimant was a police officer with a municipal employer.  Throughout his career he was exposed to dangerous and stressful situations.  On January 15, 2013 he was at a fire during work that was described as chaotic; the officer had some smoke inhalation as a result of this.  The officer had been treating for emotional/mental health issues.  On March 12, 2013 he committed suicide while at work.  A claim for widow benefits was sought with the date of accident March 12, 2013.  The Trial Judge concluded that the decedent did have PTSD and that it was an occupational disease but that it was not secondary to a physical injury.   The Judge found that the claimant had major depression per the respondent examiner’s opinion and that the death of the decedent was due to that and prescription medication management issues.  The Judge dismissed the claim.  On appeal the CRB determined that the Judge’s decision was ‘clearly erroneous” and misapplied the law to the facts.  The Board found that the case was a “mental-physical” claim with the physical injury being the gun shot that led to the death of the decedent.  The CRB cited the heart attack case of Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 208 Conn. 909 (2006) in support of its decision and the case of Biasetti v. Stamford, 250 Conn. 65 (1999) (claimant’s psychiatric injury an occupational disease but not compensable since not due to physical injury).  The Board reversed the dismissal.

The Appellate Court, however, reversed the CRB decision and concluded that the ALJ had correctly dismissed the case.  The Court stated: “It is not the role of the board or this court to disturb the administrative law judge’s credibility determinations when those determinations are supported by evidence in the record.”

The claimant will be filing a petition for certification to the Connecticut Supreme Court regarding this case; it remains to be seen whether the Court will agree to hear the case.

GUZMAN V. SERVICE UNLIMITED USA, INC., 700107985 (THIRD DISTRICT, JUDGE FENLATOR, APRIL 21, 2025)

In this trial level decision, the claimant fell from a ladder and sustained injuries to his ankles and legs.  The claimant alleged that he was an employee of Iban Cevallos who did not have workers’ compensation coverage.  Mr. Cevallos denied that the claimant was his employee and contended that he was an independent contractor. There was testimony that Service Unlimited USA, Inc. had paid the claimant for other work but not this job.  Judge Fenlator found that the claimant was an employee of Cevallos and benefits were owed; the Finding was based on the fact that Cevallos had negotiated the contract for the painting work, furnished the tools and materials to the claimant, and provided instructions to the claimant as to how the work was to be performed.  All claims against Service Unlimited USA, Inc. were dismissed.  Attorney Philip Markuszka of SDAZ successfully defended the claim on behalf of  Service Unlimited USA, Inc.

CHINN V. MCDONALD’S RESTAURANT, 6555 CRB-2-24-9 (June 13, 2025)

The finding of a compensable left hand injury was affirmed by the Compensation Review Board on appeal.   The respondents contended that there was video evidence that the alleged injury at work did not occur as alleged by the claimant, however, there were acknowledged “gaps” in the video evidence presented by the respondents.  The Judge found that claimant credible re the report of injury and the medicals, including the RME report, supported causation of the wrist injury to work.  Accordingly, the injury was found compensable.

SIMMONS V. FEDERAL EXPRESS, 6548 CRB-7-24-7 (June 13, 2025)

At the trial level a Motion to Preclude was granted because of late filing of a Form 43.  The respondents contended that service of the Form 30C was not valid and that the claimant should have tried “alternative” methods of service other than just mailing of certified mail.  The claimant did serve the Commission and employer with certified mailing of the Form 30C; the respondents notice was returned to the claimant with the note “refused and return to the sender.”  At the formal hearing the claimant testified regarding the alleged repetitive trauma that caused his back injury.  The Trial Judge found the claimant credible and that he had medical support from the treating physician.  On appeal the respondents contended that the claimant through preclusion was trying to “inequitably manufacture compensability.”  On appeal the CRB affirmed the preclusion and noted that the respondents should not have had the opportunity to cross-examine the claimant on the merits in view of the preclusion.

JASINSKI V. BUDNEY OVERHAUL & REPAIR, LTD 6547 CRB-6-24-7 (June 20,2025)

The claimant was at work at the employer’s place of business when he fell backwards and hit his head on the ground. The claimant was a milling machine operator. He testified that it felt hot at the time of the fall. Prior to the fall he had bent down to retrieve a wrench. He felt dizzy and then stood up; he does not recall what happened thereafter. The claimant did not have a prior history of fainting or seizures. The trial judge found that the injury was “not idiopathic in nature but unexplained.” The judge concluded that the respondents had failed to rebut the presumption of compensability. At the formal hearing the claim was found compensable. On appeal, the respondents contended that there was no causal relationship between the fall and employment and therefore the claim should not have  been found compensable. The Compensation Review Board affirmed the finding of compensability and that there was a presumption of compensability in this case based on Saunders v. New England Collapsible Tube Company, 95 Conn. 40 (1920). The CRB found that the respondents had not rebutted the presumption of compensability. In support of the finding the Board cited the case of Clements v. Aramark Corp., 339 Conn. 402 (2021), and agreed that no evidence was presented that the claimant’s fall was idiopathic in nature, that is, due to a personal infirmity. Respondents in this type of situation in order to defend the claim need to present medical evidence that the fall was due to the claimant’s personal infirmity as was done in the case of Post v. Raytheon Technologies/Pratt & Whitney, 6524 CRB-8-23-12 (September 6, 2024), appeal pending, AC 48047, a case successfully defended by Attorney Jason Dodge of SDAZ.

MILEY V. PARK CITY COMMUNITIES/BRIDGEPORT HOUSING AUTHORITY, 6536 CRB-4-24-3 (June 20, 2025)

The Compensation Review Board affirmed a finding and award of TP benefits under Connecticut General Statutes Section 31-308(a) and medical treatment.  The claimant had two injuries at work; the first in 2015 for an acute injury and the second in 2021 based on repetitive trauma. There was testimony from treating doctors, a RME and CME re causation and work capacity.  The Board concluded that there was sufficient evidence in the records to support the award of benefits.

KANDIC V. REA MAGNET WIRE COMPANY, INC., 6540 CRB-5-24-4 (July 2, 2025), appeal pending AC 48960

The Claimant brought a claim that emotional stress at work on December 5, 2019 caused a compensable personal injury under the Workers’ Compensation Act and associated with that claim, he additionally sought compensability of a cardiac stent procedure and a psychiatric claim, all of which claims were denied and disputed by the Respondents.  Formal hearings occurred to address three issues of compensability: (1) did the Claimant sustain a compensable personal injury on December 5, 2019 that arose out and in the course of his employment due to alleged emotional work-related stress, (2) if he did have a compensable personal injury, was it a substantial contributing factor to the need for the insertion of the stent and (3) was the alleged psychiatric claim compensable pursuant to C.G.S. §31-275(16)(B) and its requirement that the Workers’ Compensation Act does not cover mental or emotional impairments unless they arise from a physical injury or occupational disease.  The Trial Administrative Law Judge issued a March 4, 2024 Finding and Award/Dismissal that found the Claimant had a compensable workers’ compensation claim for workplace emotional distress being a substantial contributing to the need for the initial medical treatment and testing on the day of injury as the emotional stress caused his blood pressure to raise, which then caused ischemia due to a pre-existing artery blockage, but the Trial Judge found that the stent procedure was not compensable as the emotional stress was not a substantial contributing factor to the need for that treatment as it was related to his pre-existing coronary artery disease and he also dismissed the psychiatric claim as it did not arise from a compensable physical injury as the ischemia caused symptoms but not a physical injury.  The Claimant-Appellant filed Motions for Articulation, Reconsideration and to Correct, which were all denied in their entirety, and he also filed an appeal to the Compensation Review Board.  The CRB upheld the Trial Judge’s decision, finding that there was sufficient evidence in the record to support his findings and conclusions, that he applied the correct standard of law and that he was within his discretion in making his credibility assessments of the evidence and medical opinions.  Additionally, no error was found in the Trial Judge’s denial of the Claimant’s post-judgment motions. Attorney Maribeth McGloin of SDAZ successfully defended this case.

STEBBINS V. WALSH CONSTRUCTION COMPANY, 6421 CRB-8-21-4 (AUGUST 1, 2025)

In a decision which is not favorable to respondents, the Compensation Review Board affirmed a finding that the claimant was entitled to a rating of 14% of the left upper extremity as a result of a May 21, 2015 injury without credit for any prior permanency paid, notwithstanding the fact that the claimant had prior 1997 and 1998 work-related injuries to the same left shoulder for which a permanent impairment of the left shoulder had been assessed. The claimant worked for Mather Corporation and sustained injuries at work 1997 in 1998 involving a fracture of the posterior glenoid of the left shoulder. Surgery was performed. Dr. Paret;  the treating physician rated the claimant on August 13, 1999 at 20% of the left shoulder. The claimant settled all of his claims with Mather Corporation for $115,000 in 2009; within the settlement agreement the claimant alleged that he was entitled to 25% of the left shoulder (although there was no rating of 25% in existence at the time). There apparently was no voluntary agreement put in place for the permanency rating of Dr. Paret. Subsequently, the claimant worked for Walsh  Construction Company and on May 21, 2015 sustained a biceps and supraspinatus tendon injury at work which required surgery. Ultimately, the treating physician for that injury, Dr. Daigneault, assessed an impairment of 14% of the left upper extremity. The claimant sought benefits for the entire 14% rating. The respondents representing the 2015 employer resisted paying the full impairment contending that they were entitled to credit for the prior 20% rating of the left shoulder assessed by Dr. Paret. The Administrative Law Judge and the Compensation Review Board did not allow a credit contending that after the July 1, 1993 statutory changes permanent impairment was restricted to body parts outlined in Section 31– 308(b). The CRB found that “in light of the respondent’s inability to persuasively demonstrate the extent to which the permanency benefits associated with Dr. Daigneault’s impairment rating to the decedent’s upper extremity could reasonably be “subsumed” into Dr. Paret’s  prior impairment rating for that the decedent’s shoulder, we affirm the Commissioner’s decision to award the full amount of permanency benefits associated with Dr. Daigneault’s disability rating.” Based on this case, respondents should only pay permanent impairment based on the upper extremity and not accept solely a permanent impairment rating of the shoulder. The treating physician should be requested to translate any shoulder rating to the arm, an exercise which may result in a decreased rating.

WEST V. CITY OF HARTFORD, 6551 CRB-6-24-8 (August 8, 2025)

The claimant was a City of Hartford police officer who went out of work in April 2019 secondary to anxiety and depression due to an alleged hostile work environment.  On May 3 2019, he was at home and attempted to break up a dispute between his sister and another woman.  Another man became involved in the dispute and hit the claimant with a baseball bat.  The claimant alleged his psychiatric and neurologic injuries due to the May 3, 2019 incident were compensable pursuant to Connecticut General Statutes Section 54-1f(b) in that he was acting in his role as a police officer, notwithstanding that he was off duty at his home. The claim was dismissed by the administrative law judge and that finding was affirmed on appeal. It was found that the claimant did not sustain his burden of proof that he had a compensable injury that arose out of and in the course of his employment on May 3, 2019. It was noted by the Compensation Review Board that the claimant did not file either a motion to correct or a motion for articulation of the Administrative Law Judge’s decision. The Board indicated that they would not disturb the judge’s factual decision that the claimant was not acting in his capacity as a police officer at the time of the incident.

UPCOMING CASES TO BE ARGUED ON APPEAL

EILEEN POST V.  RAYTHEON TECHNOLOGIES/PRATT & WHITNEY, 6524 CRB-8-23-12 (September 6, 2024), appeal pending AC 48047

The claimant alleged that she fell at work on the company premises on February 14, 2022 causing a fracture to her left leg. While the respondents acknowledged that the claimant fell at work they denied liability in the case. The respondents contended that the claimant’s injury did not “arise out of” her employment; rather, respondents asserted that the claimant’s fall was because of a pre-existing, non-occupational foot drop. The claimant had several prior left hip surgeries which caused a foot drop. As a result of this, the claimant became more susceptible to falling. The claimant did wear a brace on her left ankle to stop falls although she admitted that it was uncomfortable. The claimant fell at a restaurant outside of work in January 2022, one month before the work accident. A fellow worker testified that he saw the claimant prior to the work accident, and she was having difficulty walking. The claimant came in to work early in the morning and was walking to her workstation at the time of the fall. Following the fall, the claimant reported to numerous medical providers that she had fallen on rock salt. At the formal hearing, however, the claimant acknowledged that she did not see any rock salt at the time of her fall but did say that there had been rock salt outside of work as she entered the premises. The claimant also testified at the formal hearing that there may have been a small puddle of water on the floor where she fell. The claimant did not know why she fell, however. The respondents presented the testimony of Dr. Raymond Sullivan, a foot specialist, who opined that the claimant’s pre-existing left foot drop was a substantial factor in causing her fall at work. The Administrative Law Judge concluded that Dr. Sullivan’s testimony was persuasive that the claimant’s foot drop was a substantial factor in causing the fall. The Judge found there was no credible or persuasive evidence that there was rock salt on her shoe when she fell or that there was water on the floor. The Judge dismissed the claim concluding that the fall was caused solely by her left foot drop condition.  The Compensation Review Board affirmed the dismissal on appeal finding that the record was “devoid of evidence that any workplace condition or activity contributed to the claimant’s injury.” The Board found that the respondents had successfully rebutted any presumption of compensability. This case is now on appeal to the Appellate Court of Connecticut. Oral argument before the Appellate Court is scheduled for September 4, 2025. This claim was successfully defended by Attorney Jason Dodge of SDAZ.

In Ex parte Lancaster, No. CL-2025-0486 (Sept. 19, 2025), a truck driver for Hunnicutt Mobile Home Service sustained both an elbow and an eye injury in a work-related motor vehicle accident. The employer sent him to an orthopedist for the elbow and an ophthalmologist for the eye.

Both doctors subsequently placed him at maximum medical improvement (MMI). The employee, dissatisfied with his care, asked for panels of four physicians in both specialties. The employer provided a panel of ophthalmologists but refused to provide an orthopedic panel.

The employee took the position that he was entitled to multiple panels since two different injuries and specialties were involved. The trial court disagreed, and the Court of Civil Appeals declined to give mandamus relief.

The Court pointed to prior cases and the specific text of § 25-5-77(a) that provides for one panel of four if the employee is dissatisfied with the initial treating physician. It does not mention the right to additional panels if multiple doctors are involved.

The Court emphasized that giving employees multiple panels would upset the balance the Legislature struck between employer control of treatment and employee input. In other words, if more rights were intended, the Legislature would have written them into the statute.

My Two Cents:

The Court denied the writ and reiterated that Alabama’s statute only guarantees one panel of four physicians.  This decision has no effect on whether a panel of four surgeons is available in the event of a surgery recommendation.  That is a separate right also provided for in § 25-5-77(a).

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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

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 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

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