NWCDN State News – West Virginia

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

May 31, 2026; Updated June 3, 2026

 West Virginia Legislature – 2026 Regular Session

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 The bill revised outdated and/or unnecessary provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation insurance and benefits. The legislation also repealed certain sections within Chapter 23 that are obsolete.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

Supreme Court of Appeals of West Virginia

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

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

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

First Term of Court 2026

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

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

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

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

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

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

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

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

Intermediate Court of Appeals of West Virginia

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

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

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

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

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

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

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

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

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

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

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

The SCAWV held in Gill:

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

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

The SCAWV clarified its position in Moore, holding:

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

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

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

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

In State Agencies of West Virginia v. Daniel Johnson, No. 25-ICA-448, (W.Va. Intermediate Court of Appeals, June 2, 2026) (memorandum decision), the Intermediate Court of Appeals affirmed the Board of Review’s finding that a remote employee suffered a compensable injury slipping on his driveway after he stepped out of his state truck to close a gate and slipped on ice. The issue on appeal is whether the Board of Review erred in reversing the claim administrator’s order which rejected the claim.

Mr. Johnson, an Inspector Supervisor for the West Virginia Department of Environmental Protection, completed an Employees’ and Physicians’ Report of Occupational Injury or Disease on January 24, 2025. Mr. Johnson indicated that he injured his right leg on January 23, 2025, when he exited a state truck to close a gate and slipped and fell on icy ground. The injury occurred on Mr. Johnson’s property as he prepared to travel to another location in the course of his duties with State Agencies. Mr. Johnson indicated that the injury occurred shortly after he started work in the morning.

Nick Zervos, M.D., signed the physicians’ portion of the form on January 29, 2025. Dr. Zervos indicated that he first treated Mr. Johnson on January 28, 2025. He advised Mr. Johnson to remain off work from January 28, 2025, to February 3, 2025. Specifically, Dr. Zervos indicated that Mr. Johnson’s injured body part was the right ankle, which was a direct result of an occupational injury. Dr. Zervos stated that the injury did not aggravate a prior injury or disease and provided work restrictions for Mr. Johnson.

Cher Szerokman, a benefits coordinator at State Agencies, completed an undated First Report of Injury, and indicated that Mr. Johnson suffered an injury on January 23, 2025, after he exited a state truck to close a gate, slipped, and fell on ice. Ms. Szerokman described the injury as a fracture of the right lower leg. Mr. Johnson’s accident occurred when he left home to travel to a jobsite. As he drove down his driveway and exited his vehicle to shut a gate, he fell on the ice. Ms. Szerokman stated that Mr. Johnson’s wife witnessed the fall and drove him to the ER.

By order dated January 29, 2025, the claim administrator rejected Mr. Johnsons’ claim on the basis that the disability he complained of was not due to an injury or disease received in the course of employment. Rather, the claim administrator determined that Mr. Johnson’s slip and fall on the ice while closing the gate at his home was not within the course/scope of employment. Thus, the claim administrator concluded that Mr. Johnson’s injury did not result from his employment. Mr. Johnson protested this order.

In correspondence to the Board dated February 13, 2025, Mr. Johnson stated that the denial of his claim was based on the fact that he fell while closing a gate as he was leaving his property, and the claim administrator found that this act was not within the course/scope of his work. However, Mr. Johnson alleged that as a field-based employee, his work begins when he leaves home and drives to a mine site or other location in the course of his duties. Mr. Johnson indicated that his “on the clock” time begins as soon as he starts his state vehicle and drives away.

By order dated October 16, 2025, the Board reversed the claim administrator’s order, which rejected the claim. The Board found that in weighing the evidence presented in the claim, including Mr. Johnson’s statement, the employer’s report, and the WC-1 form, it is more likely than not that Mr. Johnson was in the course of his employment at the time of the injury when he exited his work vehicle, slipped on the ice, and fell. State Agencies appealed the Board’s order.

On appeal, State Agencies argued that the facts of the case do not establish that Mr. Johnson sustained an injury in the course of and resulting from his employment. Further, Stage Agencies averred that Mr. Johnson faced no increased risk from his employment. The Court of Appeals disagreed.

In order for a workers’ compensation claim to be compensable, three elements must coexist: (1) a personal injury, (2) received in the course of employment, and (3) resulting from that employment. Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). “Workmen’s compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of [the] employer’s business.” Syl. Pt. 1, Calloway v. State Workmen’s Comp. Comm’r, 165 W. Va. 432, 268 S.E.2d 132 (1980). Further, the Supreme Court of Appeals of West Virginia (“SCAWV”) held that “if employees are required, as a condition of their employment, to routinely journey from place to place, then injuries incurred by those employees while traveling are compensable.” Williby v. W. Va. Off. of Ins. Comm’r, 224 W. Va. 358, 363, 686 S.E.2d 9, 14 (2009).

In this case, the Board found that Mr. Johnson established that he injured his right lower leg in the course of and as a result of his employment on January 23, 2025. Further, the Board concluded that Mr. Johnson’s description of his injury on the WC-1 form was confirmed by the employer’s report, which stated that he drove down his driveway, exited his state vehicle to shut the driveway gate, and fell on the ice. The Board compared the facts of the instant case to those in Murphy v. Eastern Arrow Corporation, Inc., No. 12- 0605, 2014 WL 211982 (W. Va. Jan. 16, 2014) (memorandum decision), in which the claimant routinely traveled between the employer’s jobsites to perform his employment duties, and the SCAWV found that traveling was within the claimant’s zone of employment. Because Mr. Johnson worked from home and traveled to other jobsites in a work vehicle as part of his job duties, the Board concluded that the right leg injury occurred in the course of and resulting from his employment.

State Agencies asserted that the Board improperly applied Hood v. Lincare Holdings, Inc., 249 W. Va. 108, 894 S.E.2d 890 (2023), and that Mr. Johnson’s employment did not place him at an increased risk of injury. The Court of Appeals disagreed. The Board distinguished the facts of the instant case from Hood, in which the claimant did not trip or fall, and his knee simply buckled. The Board found that Mr. Johnson’s claim is more similar to the facts of American Medical Facilities v. Parsons, No. 19-1174, 2021 WL 1595434 (W. Va. Apr. 23, 2021) (memorandum decision), in which the claimant slipped and fell while walking to an employer break room. In Parsons, the Court held that the claimant’s injury was within the scope of her employment when she slipped and fell while walking to the employer’s breakroom for a lunch break. Here, the Board found that Mr. Johnson routinely traveled from his home, where he worked remotely, to various jobsites as part of his job duties, and he drove a state work vehicle. Further, the Board noted that Mr. Johnson suffered an injury when he stepped out of the vehicle and slipped on the ice. Thus, the Board made a factual determination that the risks Mr. Johnson faced were directly associated with his employment, whereas the claimant in Hood was engaged in a neutral risk activity. The Court of Appeals deferred to the Board’s weighing of the evidence.

Upon review, Court of Appeals held that it cannot conclude that the Board was clearly wrong in finding that Mr. Johnson established that he injured his right lower leg in the course of and resulting from his employment on January 23, 2025. As the SCAWV 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.” Sy. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, Court of Appeals held that it cannot conclude that the Board was clearly wrong in reversing the claim administrator’s order which rejected the claim. Accordingly, the Court of Appeals affirmed the Board’s October 16, 2025, order.

For any questions, please contact:

Charity K. Lawrence

CLawrence@spilmanlaw.com

304-720-4056

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

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

Changes Impacting all Dates of Injury 

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

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

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

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

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

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

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

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

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

INDIANA UPDATES OF WORKER’S COMPENSATION BOARD ACTIVITY

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

Southeast Indiana

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

Central Indiana

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

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

LEGISLATIVE AND CASE LAW UPDATE

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

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

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

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

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

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

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

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

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

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

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

Noah Vollmer

Bleakley Bavol Denman & Grace

nvollmer@bbdglaw.com

813-221-3759 

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

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

Claimant was involved in a 1/27/24 work accident involving an accepted head injury. Claimant later filed a Petition alleging multiple permanencies as follows: 4% to the head, 6% to the visual system, 5% to the vestibular system, 2% to the right upper extremity, and 3% to the lumbar spine. The majority of the allegations were resolved prior to Hearing, inclusive of acceptance of the head and vestibular ratings.

The Board rejected the visual system permanency allegations entirely. The Board found Employer’s medical expert more credible than Claimant’s doctor, as it was not apparent from the deposition testimony that he was aware of well-documented and significant non-work-related visual issues. The Board was also “highly concerned” with claimant’s expert basing his vision rating upon convergence insufficiency symptoms, when nobody was attributing this condition to any specific trauma to the eyes. The defense expert pointed out that convergence insufficiency was due to the concussion/brain injury, and thus was a brain rather than ophthalmologic/eye disorder. The Board agreed with the defense expert that the convergence insufficiency symptoms were covered in the accepted head and vestibular ratings. 

This is an important decision to consider when faced with allegations of multiple different permanencies from the same head injury.

Should you have any questions or concerns regarding this Decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

Darriel Tynes v. City of Wilmington, IAB Hrg. No. 1543176 (Feb. 6, 2026). 

Case Caption: Crawford v. Spirit Aerosystems Inc., KS Court of Appeals Unpublished No. 128612, March 27, 2026, (cut and paste link to decision below):

https://kadc.org/EmailTracker/LinkTracker.ashx?linkAndRecipientCode=5IBRABvZ1nRMqJDkNvbnMzFKSVGDAo0HDdcpw4RCSlcYaT53tkjs65DNDRYmLI5UZzn6zdvI%2fduhQMJdh8j8x1DVS92S7LjAM8dnyHV8mVw%3d

Case Facts:

Mark Crawford worked at Spirit Aerosystems, Inc. In 2020, he began having neck pain. He claimed he reported his pain to Spirit, but the company did not send him to a doctor. Crawford saw his primary care physician and underwent an MRI, which revealed degenerative changes through his cervical spine. Crawford applied for workers compensation benefits for injuries to his cervical spine caused by repetitively lifting. Crawford's attorney referred him to Dr. Pedro Murati, whom Crawford had seen in 2008 for a previous workers compensation claim. Dr. Murati had, for that claim, diagnosed Crawford with myofascial pain affecting both shoulders and assigned him permanent restrictions. This time, Dr. Murati diagnosed Crawford with myofascial pain syndrome and impingement of the right shoulder, along with cervical polyradiculopathy. Dr. Murati attributed Crawford's injury to his "multiple repetitive traumas at work." Dr. Murati noted that Crawford reported he was completely asymptomatic before this "incident.” Spirit sent Crawford to Dr. Chris Fevurly who opined that the prevailing problem was Crawford's age and his smoking history. Dr. Fevurly did not believe Crawford's work activities were the prevailing factor cause of his condition. The Workers Compensation Court appointed Dr. Terrance Pratt as a neutral physician who determined he could not state with a reasonable degree of medical certainty that Crawford's "multilevel discogenic changes" related to his work activities. Upon referral by his primary care physician, Crawford saw Dr. John Dickerson who concluded that he needed a C3 to C7 anterior cervical discectomy and fusion, and Crawford’s work duties were the prevailing factor in his injury.

The Administrative Law Judge (ALJ), Appeals Board and Kansas Court of Appeals Decisions:

The ALJ ruled Crawford was not entitled to workers compensation benefits because Crawford did not satisfy his burden to show his repetitive job duties were the prevailing factor cause of his claimed work injury condition. The Appeals Board affirmed the ALJ’s decision after reviewing and considering all the medical expert opinions. The Court of Appeals affirmed the total claim denial, concluding that the Board’s decision was supported by substantial competent evidence. The Court of Appeals noted that Dr. Dickerson's failure to review any of Crawford's prior medical records seriously undermined the credibility of his opinions. Additionally, even though Dr. Dickerson ultimately performed surgery on claimant, Dr. Dickerson acknowledged that he "was just going by what [Crawford] said and that his symptoms began when he was injured."  The Court of Appeals noted that the Appeals Board decision denying the claim entirely, considered all the medical evidence, and on appeal the Court of Appeals does not reweigh the evidence or pass on the credibility of witnesses, the Appeals Board decision denying compensability was affirmed.

Case Take Aways For Employers/Carriers/TPA’s:

► The “prevailing factor cause” causation standard, remains a viable total claim denial defense for employers and carriers in Kansas.

► Kansas employers and carriers when defending “prevailing factor cause” claims, should consider not only one defense medical expert IME, (here it was Dr. Fevurly), but seek a second IME defense expert to confirm the initial defense expert IME opinions. This claim was litigated under a previous Kansas statute that allowed for “court ordered neutral physician” IME’s. In 2026, that statute has been changed and severe limits have been placed on court ordered neutral physician IMEs (Dr. Pratt’s winning opinion here relied on by the courts). Employers and carriers should consider retaining one of the physicians in the past typically picked as a “neutral physician” by the ALJ’s, to perform a second defense IME to confirm the initial defense IME “no prevailing factor cause” opinion. 

About the Author: This update was prepared by National Workers’ Compensation Defense Network Kansas member Kim R. Martens of the Wichita, KS firm MARTENS WORK COMP LAW LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers compensation before the Kansas Division of Workers Compensation and the Kansas appellate courts. If you have any questions about this submission or Kansas workers compensation in general, please contact Mr. Martens by either e-mailing him at Kim@MartensWorkCompLaw.com or by calling him directly at 316-461-0135.

Division I of the Oklahoma Court of Civil Appeals has published an opinion that interprets the application of old law/new law limits on the award of permanent partial disability. It's a misnomer to call the Administrative Workers' Compensation Act (AWCA) a "new law," because it has now been in effect for 12 years.

The case is Debra Glenn v. City of Tulsa, the claimant was a police officer in Tulsa and had several accidents over a long career. His total amount of PPD awarded was over 100%.  The AWCA does not allow the Commission to award PPD if the claimant has already been awarded 100 %. The problem arose because the law in effect at the time of his old injuries allowed MORE THAN 100 % because the percentage of PPD in a case in which there was a surgery or amputation WAS DEDUCTED FROM THE TOTAL PPD. Those deductions are NOT available under the AWCA.

The Court of Civil Appeals ruled that MORE THAN 100 % PPD can be awarded in a Commission case IF the PPD awarded in old law cases involved surgeries or amputations. Those percentages must be deducted. And, if the new total PPD is under 100 %, more PPD can be awarded for the last injury.

 The opinion looks at all pertinent decisions regarding the old law vs. the new law, i.e. Carlock and Cantwell. Those decisions, plus the oft-cited case of Williams Companies v. Dunkelgod, clearly hold that the law in effect at the time of a claimant's injury controls in workers' compensation matters. The new COCA opinion highlights the language in Dunkelgod:

    "The statutes then in force [the accident date] form a part of the contract and determine the substantive rights and obligations of the parties. No subsequent amendment can operate retrospectively to affect in any way the rights and obligations which are fixed."

 CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

LEGISLATIVE NEWS

The signature bill of the legislative session is Public Act 26-12 focusing on improving workplace conditions.  The relevant sections for our purposes focus on changes effective 10/1/26. Please see link below to the new statute.

 https://www.cga.ct.gov/2026/act/pa/pdf/2026PA-00012-R00HB-05003-PA.pdf

Teachers and healthcare workers or other employees of a healthcare facility or institution will now receive 100% of their AWW for injuries that result from “any physical or negligent assault.”  This applies to TT and TP.  As the benefit is outlined in 31-307, 31-308(a), it will be non-taxable.

In addition, to such weekly compensation, the amended language borrows in part from 31-236a and includes payment for 1)“any expenses reasonably incurred by such healthcare provider or other employee for medical or other services necessary as a result of such assault.”  (“Other services necessary” does not appear to have been construed previously by the Courts, but would appear to open up the door for a variety of non-medical services.)  

The group also qualifies for continued full salary continuation during the time spent in court proceedings.  It is noted that the employee cannot be charged for personal time, vacation time, or sick leave for such absences.

The definition of “healthcare provider” includes any individual directly or indirectly employed or volunteering for a healthcare facility or institution.  The new law goes on to identify those involved in direct patient care or direct contact with the patient or patient’s family when either collecting or processing information for patient’s forms of records or escorting or directing a patient or patient’s family on healthcare employers’ premises.  This appears to cover almost everyone in the facility.

“Healthcare facility or institution“ means a hospital, nursing home, rest home, home healthcare agency, home health, paid agency, emergency medical services, organization, assisted living services agency, outpatient clinic, outpatient surgical facility, community health center, urgent care facility, medical office owned or operated exclusively by a person or persons licensed pursuant to Section 20–13 (all physicians), dental office, and infirmary operated by an educational institution for the care of students enrolled in and faculty and employees of such institution.

Healthcare facility or institution does not include any facility or institution operated by the State of Connecticut, except the University of Connecticut Health Center.  We expect this covers employees beyond what some legislators may have anticipated.

The legislature had apparently expressed its concern relative to the shortage of workers in some professions.  We believe they were also concerned with being certain that private industry would take steps to reduce on the job assaults.  There does not appear to be much concern, however, with providing the system of compensation for a benefit that is 100% of salary and non-taxable.

The concept of negligent assault will likely be closely examined.  The usual definition is that associated with an extreme recklessness or carelessness, and one would hope that the term will be construed accordingly.  We of course are faced with the court’s interpretation of remedial legislation and the stated policy that the Act’s provisions need to be interpreted broadly.

The use of “or” between physical assault and negligent assault may also cause issue.  Must a physical assault still be intentional?  Again, it seems the legislature was attempting to remove the need for intent by referencing negligent assault.

MEMORANDUM NO. 2026-01

 All payments for Commission Medical Examinations (CMEs) and/or CME no-show fees are due within 45 days of receipt of a properly submitted bill. Failure to make such a timely payment will result in an additional $450 charge.

Bills for CMEs are not required to be submitted on HCFA (CMS-1500) forms and have no specific CPT code requirement. “Properly submitted” means that the bill, accompanied by the report, is submitted to the responsible party indicated on the ALJ’s original order.

CMEs are not subject to discounts, including PPO discounts. The rate for a CME is $900 unless a higher amount is approved by the ordering ALJ. Timely payment of a discounted amount will not negate the additional charge.

Respondents should timely pay any CME no show fee that has been billed pursuant to Commission guidelines. They may then request a hearing to determine whether reimbursement and/or a credit is warranted.

MEMORANDUM NO. 2026-03

Briefs to the Compensation Review Board will now have a page limitation of 35 pages exclusive of party appendices, the cover page, table of contents, table of authorities, or attachments, if any.

MEMORANDUM NO. 2025-09

The Workers' Compensation Commission (WCC) will accept the submission of certain forms and documents electronically through our enhanced GovQA System. The updated system will streamline the form submission process and make it more convenient for everyone involved. Electronic filing is not required. Parties are still welcome to file forms by mail (certified mail where required), fax, or hand-delivery.

Listed below are the forms and documents WCC will accept through the GovQA System:

The following claim forms and documents will be accepted as attachments:

- 30C: Notice of Claim for Compensation

- 30D: Dependent's Notice of Claim for Compensation

- 36: Notice of Intention to Reduce or Discontinue Payments

- 43: Notice to Administrative Law Judge and Employee of Intention to Contest Employee's Right to Compensation Benefits

- 44: Order to Second Injury Fund in Cases of Concurrent Employment

- Brief or Proposed Finding

- Hearing Request

- Hearing CANCELLATION Request

- Lien Notice

- Medical Documentation (in conjunction with a Commission Medical Exam as ordered by WCC)

- Notice of Appearance

- Petition for Review

- Motions

- Stipulation (for Review only - original copies must be brought to hearing)

The following administrative forms and documents will be accepted as attachments:

- 6B: Coverage Election by Employee who is an Officer of a Corporation or a Manager of an LLC

- 6B-1: Coverage Election by Employees who are Members of a Partnership

- 75: Coverage Election by Sole Proprietor

- Claim Filing Location Form/ Notice to Employees

- Medical Care Plan Application for Employer

- Self-Insurance Application

- WCR-1: Rehabilitation Request

Additionally, the following administrative forms may be filled out and submitted directly online:

- Contact Information Change Form (Parties may use this form to make changes to their contact information or add an email address to receive hearing notices electronically)

- Hearing Questionnaire (You must have received a survey number from WCC in order to complete this questionnaire)

Please note that parties submitting these documents to WCC electronically must continue to send physical copies to the other parties to a claim, by certified mail or hand-delivery, if required.

The Commission’s new form submission service is a centralized, secure public records system that builds on the current GovQA information and records requests portal. The GovQA portal allows requestors to track their requests and form submissions, while also standardizing workflows for employees.

GovQA is the largest provider of cloud-based Software as a Service (SaaS) automated workflow solutions for government compliance. Its Public Records Management software handles more requests for state and local governments than any other software provider.

MEMORANDUM NO. 2025-07 

 A new, updated Authorization for Release of Medical Records (PDF) is now available on the Workers’ Compensation Commission website. The form has been revised to be HIPAA compliant, as well as compliant with Connecticut’s Reproductive Rights Shield Law.

The use of WCC’s form is not mandatory. It has been provided for your convenience.  Parties may use another HIPAA compliant form if they prefer.

 MEMORANDUM NO. 2025-08 

Effective October 1, 2025, the Workers' Compensation Commission (WCC) will begin invoicing fees for Freedom of Information Act (FOIA) requests through our enhanced GovQA System. The new process will streamline billing of fees and allow for credit/debit card payments. When a records request incurs fees, the requestor will automatically be notified and receive a copy of the invoice which they can then pay online, through mail, or in-person at one of WCC’s offices.

WCC will only charge a customer the cost of what WCC pays for providing records. For physical copies, the cost is $0.25 per page plus postage, if applicable. Effective October 1, 2025, and subject to State Contract #22PSX0156, the cost to retrieve closed files from archive will now be $23.00 for the first box/file and $1.80 for each additional box/file. Should records need to be returned to archives, the cost will be $1.80 per box/file. Retrieval fees will only be charged for archived claims with a full & final stipulation on file.

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 2025-04

Memorandum 2025-04 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, 2025 is $1,716.00 (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, 2025 is  $1,220.00 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).

BURIAL EXPENSES

As of January 1, 2026, the burial fee for deaths covered under the Workers’ Compensation Act is   $14,816.74 based on the overall 2025 CPI-W increase for the northeast of 3.1%. 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, 2026 the mileage reimbursement rate is 72.5 cents per mile.

Previously on January 1, 2025 the mileage reimbursement rate was 70 cents per mile, on January 1, 2024, 67 cents per mile, on January 1, 2023  65.5 cents per mile and as of July 1, 2002  the rate was at 62.5 cents per mile.

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, 2026 will be Administrative law Judges Colette Griffin and Michael Anderson along with Chief Administrative Law Judge Morelli.

 CASE LAW

ELLSWORTH V. PROSPECT MEDICAL HOLDINGS/WATERBURY HOSPITAL, 6573 CRB-5-25-3 (May 1, 2026)

The claimant, a psychiatric nurse, was attacked at work by a patient and sustained physical injuries to her neck, back, and head. She treated with Dr. Waynik, a psychiatrist. A psychiatric RME was conducted by Dr. Herzog, who later also became a treating physician. Dr. Herzog opined that the claimant sustained a 15% permanent impairment of the brain due to her psychiatric injury. The respondents obtained an RME with neuropsychiatrist Dr. Pier, who determined that the claimant had no cognitive loss and no ratable permanent impairment of the brain. The trial judge credited Dr. Pier’s opinion and found no permanency of the brain. The claimant appealed, arguing that Dr. Pier was not a physician and that his rating opinion could not form the basis for the trial judge’s finding regarding permanency. The CRB affirmed, holding that the neuropsychiatrist’s rating opinion could provide the basis for the trial judge’s finding.

HASSELT V. LUFTHANSA GERMAN AIRLINES, 6575 CRB-7-25-4 (April 24, 2026)

The claimant sustained a compensable lumbar injury in 1994 and remained on temporary total disability (TT) benefits until his death in 2024. After his death, the claimant’s spouse sought permanency benefits for a 25% lumbar spine rating pursuant to Connecticut General Statutes § 31-308(d). A respondent’s medical examiner and a treating physician each assigned a 25% back rating in 1995 and 1996, but no voluntary agreement was issued for that rating. The trial judge found there was no “meeting of the minds” prior to the claimant’s death regarding a permanency award and dismissed the claim for permanency. The CRB reversed, finding that the parties stipulated to the ratings at the formal hearing and that the permanency award had vested. The CRB remanded the matter for a determination of the award and whether the respondents are entitled to a credit against permanency for benefits previously paid to the decedent.

DESIMONE V GRIFFIN HEALTH SERVICES, 6584 CRB-4-25-7 (March 6, 2026)

 The Claimant was employed by Griffin Health Services as an environmental services aide/housekeeping for 25 years.  She had an accepted August 17, 2010 left knee claim.  She underwent a diagnostic arthroscopy with partial meniscectomy on November 22, 2010 and was paid a 3% permanent partial impairment to the left leg.  In 2018, the Claimant sought treatment for her left knee, asserting that the need for treatment, including a total knee replacement surgery on July 23, 2018, was related to the August 17, 2010 date of injury, but also for her right knee alleging a causal relationship due to overuse due to the left knee injury.  She also filed a new March 8, 2018 date of injury for a repetitive trauma injury to the bilateral knees.  During the Formal Hearings, the Respondents accepted that the left knee replacement surgery was compensable as related to the August 17, 2010 date of injury, although contested the extent of indemnity benefits the Claimant was entitled to following that surgery.  The Respondents also denied any liability for the right knee and maintained that the right knee issues and need for treatment were personal in nature and were not related to either a sequela of the August 17, 2010 date of injury or to a March 8, 2018 repetitive trauma claim.  The Trial Judge found that the Claimant-Appellant was totally disabled and entitled to temporary total disability benefits from the date of the surgery 2018 until she was rated on September 23, 2019 and that she was entitled to a 31% impairment with a credit for the 3% previously paid.  The Trial Judge found credible the Respondents’ Medical Examiner’s opinion regarding the right knee, determined that her issues were personal in nature and dismissed the right knee claims under both dates of injury.  The Claimant filed an appeal to the Compensation Review Board arguing that the Trial Judge erred in denying the right knee claims and should have credited the opinions of the treating physicians over the Respondents’ Medical Examiner.  On appeal, the Board held that the Trial Judge properly weighed the medical evidence, that the Trial Judge had the discretion to determine which parts of the medical opinions were more credible and that there was sufficient expert testimony supporting the finding that the right knee condition was not caused by repetitive trauma work activities or due to altered gait.  The Board therefore affirmed the Finding and Decision.  Attorney Maribeth McGloin of SDAZ successfully defended this case.

BRIERLEY V. TARGET, 6574 CRB-1-125-3 (March 13, 2026)

In this case the CRB affirmed an administrative law judge’s finding that a claim was filed timely based on the “totality of the circumstances.”  The claimant was  a store director.  On September 13, 2022 when conducting an inventory the employee was struck in the face by a microwave oven causing him to hyperextend his neck.  A supervisor came to his help the claimant but injured worker continued to work his full shift.  No initial report of the incident was made.  The claimant did not receive immediate medical treatment although he did receive some massage therapy.  The worker was first seen for medical treatment by an APRN on April 5, 2023 for neck pain.  He was thereafter seen by an orthopedic surgeon who suggested PT but also discussed a possible neck fusion.  None of the treatment was paid by the employer or the administrator.  In May/June 2023 the claimant requested that a leader at the employer file an incident report; since he did not receive a positive response the claimant contacted the supervisor of the leader seeking to obtain workers’ compensation.  The supervisor said the leader was handling it. There was evidence of text messages between the leader and the claimant about workers’ compensation. The claimant in August 2023 reached out to Sedgwick, the TPA for the employer,  and requested to file a report of injury.  On September 1, 2023 an incident report was filed electronically with the employer. A video of the incident was uploaded to Sedgwick on September 7, 2023. In September 2023 the claimant had further conversations with the adjuster at Sedgwick who denied the claim.  Form 43’s were filed on September 26, 2023 and August 12, 2024 by Sedgwick; no Form30c was filed within one year of the incident.  The first informal hearing was held on December 4, 2023. In affirming the Judge’s finding that the claim was timely filed the CRB determined that under the “totality of the circumstances” the claimant’s case was filed correctly under General Statutes Section 31-294c.  In distinguishing a similar factual decision that found a claim not timely filed, Izikson v. Protein Sicience Corporation, 156 Conn App. 700 (2015), the CRB noted that in the present case the claimant within one year of the incident had conversations with the adjuster at Sedgwick, something that had not occurred in Izikson notwithstanding that the claimant had been advised to reach out to the adjuster.

PERRELLA V. FUEL CELL ENERGY INC., 6577 CRB-7-25-5 (March 27, 2026)

The Compensation Review Board considered whether an administrative law judge properly apportioned liability among multiple insurers for a claimant’s occupational disease (renal cancer) caused by long-term exposure to trichloroethylene (TCE) during employment. The judge had initially found the claim compensable and later apportioned liability using a weighted apportionment with carrier prior to a certain date being liable for 60% and carriers for employment after that date being liable for 40%.  That decision was no appealed.  The carrier went to a subsequent formal hearing over how to re-apportionment time periods for bankrupt carriers.  The judge used a pro rata calculation and one of the apportionment respondents appealed.  The Board reversed the judge’s decision and stated that the case was bound by res judicata  and that the judge erred by deviating from that established apportionment method. Accordingly, the Board reversed the decision and remanded the matter for recalculation of liability consistent with the prior 60/40 allocation across all relevant periods of exposure.

ACADIA INSURANCE COMPANY V. SHADI ET AL, NNH CV24-6142772 S, Judge Papastavros, Judicial District of New Haven, Superior Court, (February 9, 2026)

This action stems from a claim for reimbursement of workers' compensation benefits brought by Acadia Insurance Company, as subrogee of Baybrook Remodelers, Inc., pursuant to Connecticut General Statute § 31-293(a).  The injured worker, Nicholas Mozisek, was employed as an electrician with Baybrook Remodelers, Inc.  On  May 5, 2023 Mr.Mozisek was operating a 2013 Ford Transit Connect XI owned by Baybrook Remodelers, Inc., in the course of his employment.  He was traveling in the right travel lane, heading eastbound on Boston Post Road in Orange.  At that time, the defendant, Zainab Shadid, was operating a vehicle and was traveling in a southbound direction on Boston Post Road, when he attempted to drive across Boston Post Road and collided suddenly with the vehicle operated by Mr. Mozisek.  

As a result of the collision, Mr. Mozisek sustained injuries and damages and filed a workers' compensation claim related to his injuries.  As a result thereof, Acadia provided Mr. Mozisek with medical attention and has extended sums of money for medical treatment and incidental expenses, and may become obligated to expend further sums for additional medical treatment in the future.  As a further result of the accident, Acadia has become obligation to expend sums of money in payment for compensation directly to Mr. Mozisek and may be obligated to extend further sums in the future as may be awarded by the Workers' Compensation Administrative Law Judge and/or agreed upon by the parties.  To date, Acadia has paid $35,354.25 in workers' compensation benefits.     

Following the accident, the Acadia placed all parties on notice of its statutory lien rights, pursuant to Connecticut General Statute § 31-293(a).  Claimant’s counsel claimed that prior to Acadia’s suit being filed, that he had begun to have settlement discussions with the liability carrier in October of 2023 to tender its $25,000 policy.  However, there was no reported settlement at any time and even if there had been, there would have been no requirement on the party of Acadia to reduce its lien under C.G.S, Sec. 31-293(a), unless the injured worker initiated the action  

With liability being clear and no suit filed, Acadia Insurance Company, as subrogee of Baybrook Remodelers, initiated a direct civil action against the tortfeasors, Manhoor Shadid and Zainab Shadid, on April 4, 2024, with a return date of May 7, 2024. At the same time, Acadia placed Nicholas Mozisek on notice of its lawsuit, inviting Nicholas Mozisek to intervene in said action. On June 4, 2024, claimant counsel, filed a Motion to Intervene on behalf of Nicholas Mozisek in Acadia's direct action, pursuant to Connecticut General Statute § 31-293(a).   

Claimant counsel requested a one-third lien reduction in Acadia’s action and when it became clear that Acadia Insurance was maintaining its full statutory lien rights, the claimant initiated a direct action against the defendants, Manhoor Shadid and Zainab Shadid.

The underlying tortfeasor carries the statutory minimum of coverage in the amount of $25,000.00, with no additional insurance   The tortfeasor policy has been offered and the plaintiff, Acadia Insurance Company, a subrogee of Baybrook Realtors, Inc., maintained that after reimbursement of its lien, there are no additional funds left for the injured worker.  Claimant counsel agreed that his client would not be entitled to a recovery at oral argument on October 28,2025.

In addition to Nicholas Mozisek filing his own direct suit, his counsel filed a motion to consolidate the injured workers’ subsequent direct action with the present action.  (Exhibit F)  That motion to consolidate was denied, presumably due to the fact that Nicholas Mozisek was already an intervening plaintiff in that underlying action.  However, in that motion to consolidate, claimant's counsel implied that the action filed by Nicholas Mozisek was filed first, in identifying it as the “first action” and then later referring to the Acadia action as the “second suit” for purposes of consolidation.  However, to be clear, the third party action was initiated by Acadia Insurance Company on April 4, 2024, with Nicholas Mozisek's direct suit having been filed two-and-a-half months later, on June 18, 2024.  

The issue before the Court was whether claimant counsel was entitled to a fee out of the underlying tortfeasor's policy in the amount of one-third of the proceeds of the $25,000.00 settlement recovered by Acadia.  All parties acknowledge that Nicholas Mozisek is not entitled to any recovery out of the limited tortfeasor’s policy.  The only issue for the court is whether claimant attorney is entitled to a one-third attorneys' fee on the underlying action brought by Acadia against the Defendants 

Judge Papastavros consider the facts in the case and applied Connecticut General Statutes Section 31 – 293 to determine that “because Acadia initiated this action, it’s claim on any proceeds arising from this action shall take precedence. Mozisek did not initiate the action and is therefore not entitled to one third of the proceeds recovered by Acadia. Mozisek’s attorney provided no evidence, testimony, or valid basis to support his claim for attorneys fees and costs, and so is therefore not entitled to the requested amount. Accordingly, Acadia is entitled to the entirety of the proceeds pursuant to its lien.”

Based on the above, Acadia was able to receive the entire policy without any reduction for claimant counsel fees or one third reduction of the lien. This case illustrates that where liability is clear it may be appropriate for the Workers’ Compensation carrier to pursue a direct action against the tortfeasor in order to avoid payment of claimant attorney fees or one third reduction in lien. Attorney Courtney Stabnick of SDAZ successfully prosecuted this subrogation claim.