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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2026 – March 2026

Claimant’s Fall Downstairs Not Compensable

Meyer v. National Hospice Management Beacon of Hope Hospice, Injury No. 24-001520

FACTS: The claimant worked as a team assistant and on the date of injury, there was a snow and ice storm. He received a text noting that there was going to be a delayed start possibly at 10:00 am but was advised not to leave home until he heard from his supervisor at 9:30 am to confirm. However, the claimant left for work and arrived in the office parking lot at 9:02 am and went into the office at 9:15 am. He realized he forgot his badge and went back to the car at 9:32 am and fell on snowy and icy stairs outside of the building. Afterwards he received a text at 9:47 am which called off the days’ work for all employees. The claimant admitted he knew the reasons for the delayed start was due to safety concerns of the employees and the hazardous weather conditions. He testified the parking lot at work does not have designated parking for any of the lessees of the building, and the claimant could park wherever he chose. He also noted there were multiple entrances to the building, but most employees used the entrance closest to their office suites. The office manager testified on behalf of the employer that the reason for the delayed start and ultimate cancellation of in person work was for the safety concerns of the employees due to hazardous weather. She did note the employer does not own, maintain, or control the common areas of the office building and the landlord is responsible for maintenance and snow removal from common areas. She also testified the building manager for the landlord contracts with the company for snow and ice removal on the property. The leased property for the employer only begins after entering the second set of doors on the outside of the office building and the snow and ice covered stairs are beyond any of the employer’s leased space. The lease showed that the area the employer leased did not include the outside steps and doors leading into the office building. There was no dispute that the claimant fell on the snow-covered steps in the common area of the building and not in an area leased by the employer.

HOLDING: The ALJ found that the evidence presented did not establish that the risk of falling on snowy and icy stairs was somehow exclusive to the claimant’s performance of work within the course and scope of his job as opposed to the risk source of any individual walking on snow- or ice-covered stairs, whether at work or not. The judge went on to note that the evidence showed that the employer did not own, maintain, or control the exterior of the common areas of the building and when they leased spaced and the landlord has the responsibility for maintenance of the steps, including snow and ice removal. Also, the judge did note that although not critical to the decision, the evidence established that the employer directed the claimant to not report to work until 10:00 am, however, the claimant’s actions were averse to these directions. The judge concluded that the claimant was not in the course and scope of his employment when he fell on the snowy and icy stairs and the extension of premises doctrine was not applicable to this case and therefore, the case was denied. The employer appealed and the Commission affirmed the decision.

Employer Not Responsible for Claimant’s Unauthorized Care as Claimant Did Not Give Employer Opportunity to Control It

Wills v. Fixture Contracting Company, Inc., Injury No. 17-099534

FACTS: The claimant, 41-year-old journeyman carpenter, began working for the employer in the fall of 2015 and his job duties included building cabinets, display fixtures, and countertops. He worked full time and his job required bending at the waist, stooping, lifting from the ground to the work bench, reaching overhead, and bending over to clean up. There was testimony on behalf of the employer showing that the claimant’s work was not as heavy or frequent as he testified but the employer’s evidence did establish the claimant lifted and bent throughout the workday. He developed low back pain in September of 2017, and he initially treated on his own with a chiropractor. He reported his pain and was directed to Concentra; he was signed in but never seen due to the wait. He then went and treated on his own at SSM Health. He was again advised by the employer that if the injury was work related, he had to follow her instructions. He continued to treat on his own and on December 22, 2017, he brought a letter drafted by his attorney to the employer advising that his doctors were talking about surgery and asked if they would pay for his treatment. The claim was reported to the insurance company and authorizations were forwarded and the attorney returned the same. However, the claimant continued to treat on his own and his attorney directed him to Dr. Levy who recommended surgery. The claimant also signed a notice of doctor’s lien on behalf of Attorney Hoffman. The attorney made another demand for treatment on February 8, 2018, and the claimant underwent surgery with Dr. Levy on his own on March 7, 2018. He underwent a second surgery on August 1, 2018. There was no evidence that the claimant requested the employer to offer the second surgery. The claimant did ask for an award for medical bills, which amounted to $248,116.98.

The employer obtained a report from Dr. Bernardi who did not believe that the claimant’s condition was related back to his job duties. The claimant’s attorney obtained a report of Dr. Volarich who did believe that the claimant’s job duties were the prevailing factor in causing his condition and he assessed 40% disability. Dr. DeGrange also testified that the claimant’s condition was work related, as did Dr. Levy.

FINDING: The ALJ did believe that the claimant’s job duties were the prevailing factor in causing his condition. The judge did not award medical as she determined that the claimant did not make a formal demand for treatment until February 14, 2018, when the claimant’s attorney requested the surgery, suggested by Dr. Levy and repeated the same over the next two weeks. The judge noted that the claimant knew the employer was actively collecting medical records but only one week after his last demand and three weeks after the first, the claimant underwent two surgeries with Dr. Levy, thus denying the employer to direct care. The ALJ noted the employer neither failed nor refused to provide treatment before the claimant had surgery. With respect to future medical, the judge noted that the mere possibility that the employee may require treatment in the future is inadequate to establish a right to such treatment. The ALJ found that there was no specific treatment recommended by the experts and that the claimant is not entitled to future medical treatment benefits because he did not establish there was a “reasonable probability” that future medical treatment will be necessary due to the alleged work-related injury. With respect to TTD, the judge did believe the claimant was entitled to TTD during the time he was unable to work, which was supported by Dr. Volarich’s opinion. She also awarded 30% disability referable to the low back. The case was appealed to the Commission, and the Award was affirmed.

Employer/Insurer Responsible for Full Amount of Medical Bills and Should be Paid Directly to Claimant

Chick v. City of Centralia and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD88273 (MO App. 2026)

FACTS: The claimant was an equipment operator for the City from 1995-2016. In February of 2014, he slipped and fell; he was seen by Dr. Runde and referred to an orthopedist. He saw Dr. Young who evaluated the claimant but did not provide treatment. He was sent back to Dr. Runde who suggested a second orthopedic referral but the City refused to authorize additional treatment. He sought treatment on his own with Dr. Mackinnon who performed two surgeries for plexus nerve damage. He also alleged a psychiatric component. He also treated for carpal tunnel syndrome and trigger finger syndrome. He was released from care. Dr. Schlafly provided a ten-pound lifting restriction and the claimant was terminated on April 18, 2026. At a hearing, the ALJ found that the work accident was the prevailing cause of the brachial plexus injury but did not connect the claimant’s carpal tunnel syndrome, trigger finger syndrome, or psychiatric conditions back to the work accident. The ALJ did not find the claimant PTD or the employer responsible for past or future medical. The claimant appealed.

The Commission confirmed that the claimant was not PTD but did believe that the employer was responsible for the treatment for the brachial plexus condition. The Commission noted that the claimant’s health insurance paid for most of the charges and therefore, it did not require the employer to pay the amount charged for the doctor’s treatment to the employee and his attorney but instead ordered the employer/insurer to resolve the charges with the doctor and hospital directly and hold the employee harmless in any collection attempts. The claimant appealed.

HOLDING: The claimant argued that the Commission acted in excess of its powers in directing the City to pay the Award of past medical expenses directly to the medical providers instead of the claimant and the Court agreed. The claimant argued that the Commission’s method provided a credit to his employer for payments made by a collateral source, in this instance the claimant’s private health insurance despite the fact that Section 287.270 expressly prohibits such a credit. The claimant further pointed out that the Commission’s method of reimbursement does not actually reimburse him for the out-of-pocket expenses he incurred, such as deductibles and copays, and therefore, the method of “reimbursement” was inadequate. The Court cited Farmer-Cummings, which addressed responsibility of past medical expenses. It noted that the case held that a claimant is not entitled to compensation for health care provider write offs and fee adjustments that extinguish the claimant’s liability as compensation for amounts for which the employe was not liable would amount to a windfall rather than compensation. The Court noted that the case was clear that any benefits from a collateral source that fell withing Section 287.270 were outside the scope of the defense and the case clarified that the employer was required to reimburse the employee for all medical expenses incurred and that the employer should not receive and advantage for failing to timely pay medical bills incurred at the employee's expense.

The Court noted that it was clear that the Commission considered payments made toward the claimant’s medical bills by the claimant and his private insurer. However, Section 287.270 forbids the Commission from considering and granting the City a credit against its liability for payments made by the claimant or his private insurance. The Court did note that there is support in case law for an approach in which the Commission directs unpaid medical bills for which the employer is liable directly to the medical provider. However, this was not the case here. Therefore, the Commission erred by directing the City to satisfy its liability for past medical in the amount of $32,526.48 to the claimant’s medical providers rather than to the claimant. The issue of attorney’s fees on the past medical was remanded to the Commission.

Commission Decided to Strike Employer/Insurer’s Brief Due to Bogus Citations

Daniel Justin Gazaway v. Nostrum Pharmaceuticals, LLC, Injury No. 22-074974

FACTS: The claimant was employed at the insured from August 2020 until March 25, 2022. He worked on three different machines which compounded calcium acetate. He alleged health problems due to being exposed to dust particles from the calcium acetate. The claimant did undergo various treatments and obtained medical reports concluding that the claimant’s symptoms, which included difficulties breathing, asthma, and sinusitis, were related back to his exposure. The employer did send him to Dr. Bhalla who noted that he really could not comment on causation. The ALJ found that the claimant met his burden in proving that his work was the prevailing factor in causing his condition based on the testimony of two of the claimant’s experts. The judge noted there was no evidence that any other factors contributed to the claimant’s condition. The ALJ assessed 35% disability, found the employer responsible for $114,439.35 in past medical, and did find the employer was also responsible for future medical treatment and past TTD. The employer appealed and the Commission set a briefing schedule.

HOLDING: In reviewing employer/insurer’s brief it noted several citations to non-existent cases, specifically three separate cases. The Commission noted that Missouri Courts have found that filing a brief with bogus citations represents a flagrant violation of duties of candor that all parties owe to a Tribunal. The Commission noted that per its rules the Commission upon its own motion can decline to consider any brief or any portion of a brief that is not filed within accordance with its rules. In light of the fictious references included in the employer/insurer’s brief, the Commission decided to strike the employer/insurer’s brief in its entirety on its own motion. The Commission urged all parties whether members of the bar or pro se to be cognizant that they are aware of this issue and will not permit fraud on the Commission. The Commission did find that the ALJ’s Award was supported by competent and substantial evidence and affirmed the same.

The Nebraska Workers' Compensation Court has announced plans to relocate its Lincoln office later this summer.

The Court will move from its current location at 1010 Lincoln Mall to Center on N, located at 1221 N Street in Lincoln. The new location is just a few blocks from the Court’s existing office.

At this time, the Office of the Court will continue operating from 1010 Lincoln Mall, Suite 100, until further notice. Court officials have indicated that additional updates—including any temporary service adjustments impacting scheduled hearings or trials—will be provided as more information becomes available.

Operations at the Hall of Justice in Omaha, as well as administrative personnel currently located at 1221 N Street, Suite 402, will remain unchanged.

The Court expressed its commitment to continuing to serve the public and looks forward to operating from its new location.

For additional information regarding workers’ compensation in Nebraska, visit the Court’s website or contact the Information Line at 402-471-6468 or 800-599-5155.

On January 1, 2026, the Delaware Family and Medical Leave Insurance Program began to accept claims.

The Delaware Department of Labor has created a forty-page Guide for Employers & Third Party Administrators that discusses eligibility, coverage, and reporting under the program.

The Guide is a helpful document for Employers to understand their responsibilities during the reporting and claims process.

We invite you to contact any attorney in our liability department for assistance in navigating this new administrative claims process in Delaware.

On February 13, 2026, The Alabama Court of Civil Appeals released its opinion in the matter styled Professional Education Services Group, LLC (“PESG”) v. Richard A. Ford., wherein it affirmed a PTD verdict, in part.  The case revolved around Ford’s claim that he sustained a left shoulder injury during his employment with PESG, which rendered him unable to return to his previous work or find other gainful employment. ​

Ford, a former HVAC mechanic, suffered a shoulder injury in June 2019 after tripping and falling at work. ​ Following surgery and treatment, he was assigned sedentary work restrictions, which were incompatible with his previous career in heavy-duty HVAC work. ​ A vocational expert concluded that Ford had a 100% vocational disability and was incapable of obtaining or maintaining competitive employment. ​ The trial court determined that Ford was permanently and totally disabled due to his shoulder injury, not his unrelated heart condition. ​ The court awarded Ford compensation for the remainder of his natural life. ​

PESG appealed the judgment, arguing that the evidence was insufficient to support the finding of permanent total disability. ​ PESG claimed that no medical or expert testimony explicitly stated Ford was incapable of gainful employment and that his heart condition, not his shoulder injury, was the cause of his disability. ​

The Court of Appeals affirmed the trial court’s finding that Ford was permanently and totally disabled due to his shoulder injury. ​ The court noted that Ford’s testimony about his pain and inability to work, combined with the vocational and medical evidence, constituted substantial evidence to support the trial court’s decision. ​ However, the portion of the judgment that awarded Ford PTD for the remainder of his natural life was reversed.  As the Court pointed out, compensation for PTD is limited to the duration of the disability, not the employee’s lifetime. ​

​My Two Cents:

Even with its opinion being release the day before Valentines Day, the Court refused to give much credence to matters of the heart.

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.

CALIFORNIA 2026 NEWS

Beginning January 1, 2026, the following laws take effect for all injuries occurring on or after 1/1/26 unless otherwise noted:

·       SB 230 expands rebuttable presumptions for firefighters by extending coverage for cancer, PTSD, and other injuries to firefighters working at commercial airports. It also broadens presumptions for conditions such as pneumonia to firefighters serving at commercial airports, NASA installations, and U.S. Department of Defense facilities, further strengthening presumptive coverage for high-risk public safety work environments.

·       AB 1125 extends the heart injury presumption to peace officers employed by the State Department of State Hospitals, affording them the same presumptive benefits previously limited to officers at Atascadero State Hospital. The change recognizes the comparable occupational risks faced by these workers.

Beginning February 1, 2026, employers are required to provide a stand-alone written notice to current employees and new employees upon hire, in a manner the employer normally uses to communicate job or employment information, with information related to employee rights, including:

• Workers’ compensation benefits (including disability pay and medical care for work-related injuries or illness, and the contact information for the Division of Workers’ Compensation)
• Notice of inspection by immigration agencies. Labor Code 90.2
• Protection against unfair immigration-related practices against a person exercising protected rights. Labor Code 1019-1019.2.
• The right to organize a union or engage in a concerted activity in the workplace, and Constitutional protections when interacting with law enforcement at the workplace (i.e., fourth amendment protection against unreasonable searches and seizure, and fifth amendment protection against self-incrimination and right to due process)
• Rights when interacting with law enforcement at the work place, including immigration.  US Const 4^th and 5^th Amendment. 

D.C. Law 26-42. Parity in Workers’ Compensation Recovery Amendment Act of 2025.

            In July of 2025, the Parity in Workers’ Compensation Recovery Amendment Act of 2025 amended the District of Columbia Workers’ Compensation Act of 1979. This law allows claimants who received an award or payment of compensation in another state to receive compensation for the same injury or death in DC. However, if the claimant was already awarded compensation from the other state, D.C. will reduce the amount they already received from the other state.  This amendment applies to all claims that were still pending as of June 28, 2022 and all claims after that. This law became effective on October 1, 2025.

New D.C. Compensation Rates

The newest D.C. Compensation minimum temporary total disability and permanent partial disability rate as of 1/1/2026 are $463.02. The maximum temporary total disability and permanent partial disability rate as of 1/1/2026 is $1,852.07. Additionally, the maximum penalty for a late payment is now $7,500.

Minimum Wage

Beginning July 1, 2026, the minimum wage in D.C. will increase from $17.95 per hour to $18.40 per hour for all workers, regardless of the size of the employer. As of July 21, 2026, the base minimum wage for tipped employees will increase to $10.30 per hour. This affects workers’ compensation costs for employes because the higher their wages are, the more injured workers can receive. 

Nevada Workers’ Compensation Law Update
SB 7 (2025 Special Session): Expansion of First Responder Occupational Disease Presumptions

Nevada enacted Senate Bill 7 during the 2025 Special Session, significantly expanding occupational disease presumptions for first responders.

Senate Bill 7 expands workers’ compensation occupational disease presumptions for firefighters and other first responders, making it easier for them to establish that certain diseases are work-related. The law strengthens the presumption framework by shifting more of the evidentiary burden to employers and insurers.

SB 7 became effective immediately on November 29, 2025 and is structured to apply to claims that were pending and not finally adjudicated as of that date, not just future filings. As a result, active litigation and previously denied claims may be reevaluated under the expanded presumption standard.

https://www.leg.state.nv.us/App/NELIS/REL/36th2025Special/Bill/13004/Overview

• Average Weekly Wage: Based on wages earned in 52 weeks prior to the injury; $30 minimum.  Average annual earnings are equal to 50 times AWW (§102.11(1)(2)).
• Burial Expenses: Effective 05/01/10, maximum burial expense is $10,000 (§102.50).
• Death Benefit: Up to four years’ average annual wage (200 times average weekly wage but see secs. 102.46-51 Wis. Stats. for specific conditions).  Payments are paid weekly at TTD rate (§102.48(3)).  2026 maximum wage rate increases death benefit for fatal injuries occurring on or after January 1, 2026 to $412,500; Un-estranged parents benefit remains at $6,500.00; $20,000 payment into State Fund (§102.49)
• Disfigurement: Up to one year’s wages, subject to maximum ($102,125 max as of 01/01/26, §102.56); only applicable if Applicant does not return to work.
• Fractional Weeks: TTD benefits are paid for each day except Sunday, at the daily rate of one-sixth of the weekly rate (§102.11).
• Maximum Meal Allowance: Breakfast - $8; Lunch - $9; Dinner - $17.
• Medical Records: Health care providers must furnish certified copies of relevant records upon request.  Charges may not exceed the greater of $.45 per page or $7.50 per request, plus actual postage, or $26 per request for electronic records (§102.13(2)(b)).
• Medical Treatment: No limit on medical treatment reasonably and necessarily required to cure or relieve the injury (§102.42(1)).  Please note that Wisconsin does not have a fee schedule.
• Medicare Set Aside Thresholds:  If the Applicant has a “reasonable expectation” of Medicare entitlement within 30 months and the settlement exceeds $250,000 OR if the Applicant is currently a Medicare beneficiary and the settlement exceeds $25,000, a MSA can be submitted to CMS.   “Reasonable expectation” includes Applicants that are 62 ½ years old, or on Social Security Disability, or appealing a Social Security Disability determination.
• Mileage: As of 7/1/12 = $0.51 per mile
• Multiple Injury Variations: Benefits are increased if an injury causes more than one compensable permanent disability (see sec. 102.53, Wis. Stats.).  Schedule applicable to proximal injuries is reduced by disability resulting from more distal injuries (see DWD 80.50).
• Permanent Partial Disability (PPD): Rate is set by statute.  Maximum rate depends on injury date.  Unscheduled injuries are measured by functional limitations or loss of earning capacity, whichever is greater. 
• Statute of Limitations: *6 years prior to 01/01/78       *10 years as of 01/01/78     *12 years as of 05/13/80 *6 years for traumatic injuries as of 3/2/16 (occupational injuries remain at 12 years)

The statute of limitations has been eliminated for injuries resulting in loss or total impairment of hand or any part of rest of arm proximal to hand, foot or any part of rest of leg proximal to foot, any loss of vision, any permanent brain injury or any injury causing need for total or partial knee or hip replacement.  Said claims shall be covered under Work Injury Benefit Supplemental Fund under secs. 102.17(4) and 102.66(1)(2), Stats., if the last date of compensation or injury was before 4/1/06; otherwise, it is the carrier’s responsibility.

• Supplemental Benefits: Maximum benefit rate increased to $669 per week as of 03/02/16 (§102.44(1)).
• Temporary Partial Disability (TPD):  TPD rate is the ratio of actual wage loss during disability to average weekly wage times the TTD rate (i.e., an employee limited to half-time work receives one-half the TTD rate - §102.43(2)(3)).
• Temporary Total and Permanent Total Disability (TTD & PTD): Two-thirds of average weekly wage.  Maximum rate depends on date of injury; PTD benefits are paid for life (§102.11 & 102.44).
• Unreasonable Refusal to Rehire: Maximum penalty of up to one year’s wages. (§102.35(3)).
• Vocational Rehabilitation: TTD and travel expenses are paid during training.  For claims after 4/16/12, also responsible for tuition, books, and fees.  If training takes place away from the employee’s residence, actual and necessary maintenance expenses are also paid (§102.61).
• Vocational Rehabilitation Limit: The maximum annual limit for services provided by private vocational rehabilitation specialists is $2,183.00 (effective 01/01/26).
• Waiting Period: Three days.  If disability (temporary or permanent) exists after 7-calendar days from the date the employee leaves work as a result of the injury, benefits are paid for the waiting period (§102.43).

NWCDN State News – West Virginia

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

February 16, 2026

 Upcoming Conferences

The West Virginia Workers’ Compensation Association is hosting its annual conference on April 30, 2026, in Charleston, West Virginia. A featured program will discuss E-Mods and understanding claim and program costs to discuss how a comprehensive workers’ compensation program can impact your E-mod and premium costs from claim avoidance, safety measures and claim management. Another featured speaker is Dr. Chris Martin to debate whether the Rule 20 treatment guidelines are still a valid, including his position on the importance of treatment guidelines to the workers’ compensation system in West Virginia to maintain and keep medical costs low and to help manage a workers’ compensation claim. West Virginia Insurance Commissioner Allan L. McVey will discuss the Insurance Market in West Virginia, and West Virginia State Treasurer Larry Pack will discuss the financial impact of a stable workers’ compensation market to our State’s financial health. More information can be found under the Meetings drop down menu of the WVWCA website: www.wvwca.net

West Virginia Legislature – 2026 Regular Session

 As of February 11, 2026, there are several bills of note related to workers’ compensation submitted in the 2026 Regular Session of the West Virginia Legislature. The West Virginia Workers’ Compensation Association and other business advocacy groups are following several bills related to occupational pneumoconiosis law in West Virginia.

Senate Bill 895 is concerning because it removes the statute of limitations for certain occupational pneumoconiosis (OP) claims and allows unlimited reopening of old claims. It was introduced on February 10, 2026, by Senator Takubo, Senator Smith (Senate President) and others, and was referred to the Judiciary Committee. This bill is similar to bills that have been introduced unsuccessfully for several years. The bill relates to progressive massive fibrosis (PMF) -- the most severe form of coal workers’ pneumoconiosis. The bill removes all time limits for filing or reopening PMF claims. A new section (§23‑4‑8e) allows miners with evidence of PMF to file initial claims or reopen old claims at any time, with no statute of limitations. The bill establishes PMF as a distinct, more severe condition by explicitly recognizing PMF as more serious than simple pneumoconiosis and defines it using radiographic criteria (large opacities >1 cm). The bill creates a mandatory impairment rating where a PMF diagnosis is automatically considered a 15% permanent partial disability under §23‑4‑6(i). This is a fixed statutory award. Finally, the bill allows unlimited reopening of PMF claims. Because PMF is a progressive disease, the bill ties PMF to the “progressive disease” category, which already allows repeated reopening petitions. Senate Bill 895 expands this by eliminating time limits entirely.

Delegates Hall, Jeffries, and Mott introduced House Bill 5515 on February 13, 2026, which mirrors Senate Bill 904 introduced February 10 by Senator Azinger. Both bills are intended to “modernize” Chapter 23 of the West Virginia Code. House Bill 5515 has been referred to the House Finance Committee. Senate Bill 904, introduced by Senator Azinger, has been single-referred to the Senate Banking and Insurance Committee. Both bills propose significant revisions to Articles 4 and 5 of Chapter 23. The Office of the West Virginia Insurance Commissioner drafted the legislation and requested that the respective committee chairs introduce the bills. According to the introductory language, the legislation represents a comprehensive modernization of West Virginia’s workers’ compensation statutes. It updates, reorganizes, and repeals numerous provisions in Articles 4 and 5 to improve administrative clarity, ensure consistency, and align the code with post-2005 reforms. The Commissioner indicated that this bill represents the final phase of a multi-year cleanup effort. In addition to modernizing statutory language, the bill would grant the Governor flexibility to reduce the number of Board of Review members as caseloads decline. The Commissioner has stated that the proposed changes are non-substantive in nature. The West Virginia Workers’ Compensation Association will review and analyze both bills to ensure that no unintended consequences result from the proposed revisions.

House Bill 4901 is an attempt to add a mandatory indemnity benefit for an employee with pulmonary massive fibrosis without pulmonary impairment into the deliberate intent section 2 of article 4 (WV Code 23-4-2), but it also will open the door for more deliberate intent lawsuits given that the language is inserted in this section of the Code. If the purpose is to add an indemnity benefit structure for this type of injured employee, it should have been inserted elsewhere in the code, possibly section 6a (WV Code 23-4-6a). Inserting the new language into WV Code 23-4-2(d)(2)(B)(v)(IV) and WV Code 23-4-2(d)(2)(B)(v)(V) will certainly open the door for more deliberate intent lawsuit outside the workers’ compensation system despite the prerequisite qualifications in the new law:

(1)   the employee must have written certification from a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis without current pulmonary impairment;

(2)   the employee must file the cause of action within one year of the date the employee meets the requirements; and

(3)   the employee must prove the employer fraudulently concealed or manipulated dusts samples or air quality samples.  

The proposed bill at this point provides a mandatory award with no connection to how the benefits are defined for a claimant with pulmonary massive fibrosis with no current pulmonary impairment:

(1)   Category A shall receive 10 percent;

(2)   Category B shall receive 20 percent; and

(3)   Category C shall receive 30 percent.

 House Bill 4589 expands time limitations for evaluation before the Occupational Pneumoconiosis Board, and expands indefinitely the current three-year statute of limitations. The bill essentially provides an unlimited time for an employee to file an occupational pneumoconiosis claim and obtain an evaluation at the OP Board, circumventing the current three-year statute of limitations. House Bill 4589 was discussed at a hearing on January 22, 2026, in the Committee on Health and Human Resources. Commissioner McVey testified before the committee hearing and discussed the financial impact of the bill on the operating budget of the OIC, the operating budget of the OP Board, and the solvency of the Old Fund. Calculating insurance reserve information for uncertain claims will be impossible and will increase the cost of obtaining workers’ compensation insurance for all businesses. The bill is problematic to the insurance industry and employers in West Virginia because it will increase the expenses of the Operating Fund of the OIC, will likely adversely affect the efficiency of the OP Board, and will likely increase the cost of obtaining affordable workers’ compensation insurance for businesses in West Virginia. The long-term impact of the bill will be a challenge to the low cost of workers’ compensation insurance for all employers in the state.

Senate Bill 110 creates a West Virginia Black Lung Program that grants pain and suffering for occupational pneumoconiosis. There is already a robust West Virginia Black Lung Program long in existence. Occupational pneumoconiosis is evaluated and compensated under existing state law with generous benefits and medical treatment for qualifying West Virginia employees afflicted with occupational pneumoconiosis. Benefits are already tax-free and not reportable as income to the State or IRS. An additional black lung benefit that has provided over $30 million in direct benefits to West Virginians just in FY2025 is the Federal Black Lung program. All claims for federal black lung benefits are presumed to be filed timely and there is no statute of limitations for filing survivor claims. Monthly benefits are based on the number of dependents as well as generous medical coverage, also all tax-free and not reported as income. The proposed Senate Bill 110 will fund a third, unnecessary State Black Lung scheme through taxes on coal, wind, solar, and other renewables. West Virginia taxpayers are already struggling, asking them to bear the burden of higher energy rates is unnecessary and harmful. The proposed Senate Bill 110 also instructs that a portion of the federal coal excise tax that funds the already-beleaguered Black Lung Disability Trust Fund be redirected to create this redundant program, which would be opposed federally and would further exacerbate this already fiscally problematic Fund’s financial issues. There is no residency requirement for the receipt of pain and suffering benefits under the proposed Senate Bill 110, so West Virginia taxpayers would be subsidizing benefits to countless nonresidents. It is also potentially retroactive, as there is no beginning date specified.

Occupational pneumoconiosis can be a devastating diagnosis to individuals and families. There are two robust, longstanding programs available to afflicted employees and their survivors that provide benefits. Senate Bill 110 is redundant, fiscally irresponsible, and creates a burden on West Virginia taxpayers to provide benefits to out of state residents.

 House Bill 4589 is currently in the House Committee on Health and Human Resources. Senate Bill 110 has been referred to the Committee of the Judiciary and then to the Committee on Finance but has not been scheduled on the agenda for either committee.

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals of West Virginia welcomes a new justice in the first term of 2026. Justice Gerald M. Titus III was appointed on Nov. 21, 2025, by Gov. Patrick Morrisey to fill the seat vacated by Justice Tim Armstead, who passed away in August. Justice Titus was officially sworn in to office during a private ceremony on Dec. 12 in order to begin work ahead of the Court’s spring term. Prior to joining the Court, Justice Titus was a member of Spilman, Thomas & Battle, where he maintained a general litigation practice, including complex business disputes, commercial transportation claims, eminent domain proceedings, environmental matters, criminal investigations and prosecutions, and dispute resolution.

At the beginning of the Spring Term of Court in 2026, the Court has not issued any signed opinions. As of the date of this memo, the Court has issued six memorandum decisions related to workers’ compensation cases.

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

Terry Kyle v. Patriot Coal Corp., No. 25-605 (W.Va. Supreme Court, January 13, 2026) (memorandum decision) is a January 2026 WV Supreme Court decision regarding a permanent partial disability (“PPD”) rating for occupational pneumoconiosis (“OP”). The claimant had been exposed to occupational dust for 23 years. A chest x-ray was found by the Occupational Pneumoconiosis Board (“the OP Board”) to show insufficient evidence of pleural or parenchymal changes to support a diagnosis of OP. The claimant underwent pulmonary function testing in July 2023, which showed 10% pulmonary impairment. He subsequently underwent pulmonary function testing in April 2024 which showed 0% pulmonary impairment. The OP Board found the two studies to be minimally different from each other, and it noted that such studies frequently show fluctuating values on different days. The OP Board relied on the April 2024 study to find 0% impairment, explaining that the pulmonary function study with the best volumes most accurately shows the extent of a claimant’s breathing capacity. The Intermediate Court of Appeals affirmed the decision. On appeal at the WV Supreme Court level, the claimant argued the Intermediate Court of Appeals had noted that the lower tribunal’s decision “lacks reasoning.” The claimant also argued he should have been granted 10% PPD for OP based on the July 2023 study due to the evidence being in equipoise. This argument was based on W. Va. 23-4-1g(a) which provides that “[i]f, after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant’s position will be adopted.” However, the WV Supreme Court found the evidence was not in equipoise and W. Va. Code 23-4-1g(a) does not apply. The April 2024 pulmonary function study showing 0% had the best volumes. Thus, the claimant did not prove the OP Board was clearly wrong in its decision, and the 0% PPD award was affirmed.

Intermediate Court of Appeals of West Virginia

In the Spring Term of Court in 2026, the ICA has not issued any signed opinions. As of the date of this memo, the Court has issued thirteen memorandum decisions related to workers’ compensation cases.

Joseph Kessler v. West Virginia Paving, Inc., No. 25-ICA-275, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision) is a February 2026 Intermediate Court of Appeals decision regarding failure to establish exposure to the hazards of OP. The claimant alleged he was exposed to occupational dust hazards during his employment in coal mines from 1975 to 1982, 1986 to 1987, 2001 to 2002, and 2013 to 2022. While working for West Virginia Paving, Inc., his job activities involved picking up loads of rock, sand, and other materials from a mine quarry and delivering the product to customers. The Board of Review found the claimant failed to establish by a preponderance of the evidence that he was exposed to abnormal quantities of dust during the course of and resulting from his employment. W. Va. Code § 23-4-1(b) states that in order to be eligible for workers’ compensation benefits related to OP, a claimant must have “been exposed to the hazards of occupational pneumoconiosis in the State of West Virginia over a continuous period of not less than two years during the 10 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.” “[A] ‘hazard’ as contemplated by the statute, consists of any condition where it can be demonstrated that there are minute particles of dust in abnormal quantities in the work area.” Meadows v. Workmen’s Comp. Comm’r, 198 S.E.2d 137, 139 (1973). Mere employment at a dusty location, such as a mine site, is not enough to show a claimant has been exposed to a hazard. The Intermediate Court of Appeals held that the claimant experienced only occasional and brief periods of dust exposure during his work. He testified he remained in an enclosed truck cab during loading and unloading, which only took five to ten minutes, and which took place in an open-air environment. He also testified most of his driving occurred on public roads. Thus, the Court found it was not clearly wrong for the Board of Review to find the claimant was not exposed to hazardous dust levels while working for his employer because he failed to establish occupational exposure to abnormal quantities of dust. 

Alliance Coal, LLC v. Ashley Carte, No. 25-ICA-284, (W.Va. Intermediate Court of Appeals, February 3, 2026) (memorandum decision). Alliance appealed the June 10, 2025, order of the Workers’ Compensation Board of Review (“Board”), which reversed two claim administrator’s orders and granted Carte a 12% permanent partial disability (“PPD”) award. On May 17, 2022, Carte was employed by Alliance as an underground fire boss in a coal mine when he injured the bicep/forearm of his left arm while he was repositioning roof straps. The appeal involves the proper interpretation of the AMA Guides Fourth Edition and the Board’s weighing of the evidence of different methods of calculating whole person impairment when using grip strength loss measurements. The ICA was persuaded by the Board’s determination that both Mr. Carte’s statements to Dr. Guberman regarding his loss of grip strength and Dr. Guberman’s evidence showing significant loss of grip strength between the left and right hands were more persuasive measurements of whole person impairment, and Alliance failed to rebut these findings. As the Board noted, the Guides allow the use of grip strength as the basis for an impairment rating in rare cases, and Dr. Guberman concluded that this was such a case. Thus, the ICA found no error in the Board’s determination that Dr. Guberman’s application of loss of grip strength pursuant to the Guides was appropriate in this case. The ICA applied a deferential standard of review and affirmed the Board of Review:

As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude that the Board was clearly wrong in finding Mr. Carte sustained a 12% WPI from loss of grip strength due to the compensable injury.

Alliance Coal, LLC v. Ashley Carte, at p. 4.

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