By: Jigar S. Desai

In a January 27, 2026, Rule 23 order, the Illinois Appellate Court, Second District, Workers’ Compensation Commission Division, addressed the compensability of injuries sustained by a traveling employee who was assaulted by third parties while making deliveries. Avila v. Illinois Workers Compensation Commission, 2026 IL App (2d) 250093WC-U. The court reversed the Commission’s denial of benefits and reinstated the arbitrator’s compensability findings, holding that the Commission’s application of the aggressor defense and its causation analysis were against the manifest weight of the evidence. The court further remanded the case for the Commission to consider whether penalties and attorneys’ fees should be imposed.

Although the decision is nonprecedential, it provides a detailed illustration of how courts analyze street-risk exposures, the aggressor defense, and intervening acts in the context of traveling employees.

Factual Background

Jose Avila worked as a delivery driver for Amazon. On August 1, 2023, while performing his delivery route in Aurora, Avila was driving his truck on a residential street when a black SUV abruptly cut in front of him at close range. The maneuver was sufficiently sharp that Avila had to brake suddenly. Avila testified that the SUV nearly struck a woman who was unloading groceries on the side of the road.

After the near-collision, Avila honked his horn and gestured toward the driver of the SUV. He then stopped his delivery truck and momentarily remained in the area. According to Avila, his purpose in stopping was not to pursue a confrontation with the driver of the SUV but to check on the woman who had nearly been struck and to ensure that she was not injured. The dash camera footage showed Avila stopping his vehicle while a pedestrian remained in the parkway near the truck.

While Avila was stopped, individuals associated with the SUV began yelling at him. The driver of the SUV exited his vehicle and walked toward Avila. Avila testified that he felt threatened because he was still seated and buckled in his truck with the door open, and the approaching individual was on the side of the open door. Avila unbuckled his seat belt and exited the truck. The video footage showed Avila and the SUV driver meeting briefly near the truck, at which point the driver of the SUV punched Avila. Others joined in the scuffle. The physical altercation was brief and partially out of camera view. The woman who was almost struck intervened and calmed the initial confrontation.

After the initial confrontation, Avila returned to his truck and drove away. As he was leaving, he yelled words and made nonverbal gestures to the individuals who had attacked him. Avila stated that he did this out of frustration, but not in a threatening manner.

The dash camera footage showed him continuing along his delivery route through a residential neighborhood for several minutes. Approximately four to five minutes later, and two to three blocks away from the location of the initial encounter, Avila parked his truck to make another delivery. As he walked toward the delivery location, a maroon sedan pulled up near the truck. Several individuals exited the vehicle, including the driver of the SUV from the earlier incident. Avila was attacked from behind, knocked to the ground, and beaten and kicked by multiple assailants. During the assault, one of the attackers took a chain from Avila’s neck.

Avila reentered his truck after the second assault. Dash camera footage showed visible blood on his face and head. He appeared to photograph the fleeing assailants and then stumbled near the passenger side of the vehicle. Emergency medical services transported him to the hospital, where he was treated for facial fractures, dental injuries, head trauma, and related symptoms. He later received follow-up dental treatment and medical care for headaches and psychological symptoms related to the assault.

Procedural History

The case proceeded to arbitration. The employer argued that Avila was the aggressor and his recovery was therefore barred. The arbitrator disagreed and found that Avila’s injuries arose out of and in the course of his employment as a traveling employee and were causally related to the assaults. The arbitrator concluded that the risks of street encounters were incidental to his job duties and that, in any event, the second assault occurred while he was actively making a delivery. The arbitrator awarded temporary total disability benefits, medical benefits, prospective care, penalties, and attorneys’ fees.

On review, the Commission unanimously reversed. The Commission found that Avila was the aggressor in the first incident based on his gestures, conduct, and decision to exit his truck. The Commission further concluded that the second assault would not have occurred but for Avila’s conduct during the first encounter, thereby negating the causal connection to employment.

The circuit court reversed the Commission, finding that the aggressor determination as to the first incident, and the conclusion that the second assault was merely a continuation of the first, were against the manifest weight of the evidence. The employer appealed to the appellate court.

The Appellate Court’s Analysis

The appellate court affirmed the circuit court’s decision. The court began by reaffirming that an injury must arise out of and in the course of employment in order to be compensable. The “in the course of” element concerns the time, place, and circumstances of the injury, while the “arising out of” element requires a causal connection between the employment and the injury. The court noted that injuries sustained by traveling employees are analyzed under more liberal standards because such employees are exposed to the risks of the street as an inherent aspect of their work.

In the Course of Employment

With respect to the “in the course of” requirement, the court had little difficulty concluding that Avila satisfied this element. At the time of the second assault, Avila had resumed his delivery route and was actively engaged in making a delivery. The evidence showed that he had disengaged from the earlier confrontation, driven away, and returned to his work duties. Accordingly, the court found that Avila was within the time and space boundaries of his employment when the injury occurred.

Arising Out of Employment

The court then turned to the “arising out of” element. The Commission had concluded that Avila’s injuries did not arise out of his employment because the assaults stemmed from a personal dispute initiated by his conduct during the traffic encounter.

The appellate court rejected that characterization. It emphasized that Avila’s job as a delivery driver required him to travel public roadways and interact with traffic and members of the public. The risks inherent in street travel, including the possibility of confrontations with other motorists, are risks to which Avila was exposed by virtue of his employment. The court cited established precedent recognizing that assaults on traveling employees by third parties may be compensable when the employment places the employee in a position of increased exposure to such risks.

The Aggressor Defense

The appellate court devoted significant attention to the Commission’s application of the aggressor defense. The court reiterated that an employee who becomes the aggressor in a physical altercation may be found to have departed from the course of employment, thereby breaking the causal connection between employment and injury.

However, the court emphasized that aggressor status is a fact-intensive determination that must be evaluated based on the totality of the circumstances. The mere fact that an employee exchanges words, gestures angrily, or exits a vehicle does not, by itself, establish that the employee became the aggressor in a subsequent physical confrontation.

Reviewing the dash camera footage and testimony, the court found that the Commission’s conclusion that Avila was the aggressor in the first encounter was against the manifest weight of the evidence. The video did not show Avila initiating physical violence, and the evidence showed that the other driver approached Avila’s truck and struck the first blow. While Avila’s conduct may have contributed to a tense encounter, the court concluded that the record did not support a finding that he escalated the encounter into a physical fight so as to forfeit the protections of the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq.

Causation and the Second Assault

The court further rejected the Commission’s conclusion that the second assault was merely a continuation of the first encounter and therefore remained personal in nature. The appellate court emphasized that there was a meaningful temporal and spatial break between the two incidents. Avila had left the scene of the initial confrontation, driven several blocks, and resumed performing his delivery duties. The second attack occurred at a different location, several minutes later, and involved assailants who pursued Avila and initiated a new, unprovoked assault while he was making a delivery.

In addressing causation, the court explained that the Compensation Act does not require that employment be the sole cause of an injury. It is sufficient that the employment be a contributing cause. The court rejected the Commission’s “but for” reasoning that the second assault would not have occurred but for Avila’s earlier conduct. The court noted that such a broad conception of causation would improperly transform many workplace injuries into noncompensable events whenever a claimant’s prior conduct could be traced as part of the chain of events. Instead, the proper inquiry is whether the injury can fairly be traced to a risk of employment, as opposed to a purely personal risk. Here, Avila’s exposure to public street risks as a delivery driver, combined with the fact that he was engaged in work duties at the time of the second assault, supported compensability.

Standard of Review

Finally, the appellate court underscored the standard of review applicable to Commission findings. While the Commission’s factual determinations are entitled to deference, they will be reversed when an opposite conclusion is clearly apparent from the record. The court concluded that the Commission’s findings regarding aggressor status and causation were contrary to the clear weight of the evidence presented.

This decision highlights the importance of carefully separating multiple incidents when analyzing causation. When an employee disengages from an initial confrontation and later sustains injuries in a separate encounter, the later event may be deemed an independent intervening act rather than a continuation of the earlier dispute. Practitioners should analyze temporal separation, geographic separation, and whether the claimant had resumed job duties at the time of injury.

For employers and carriers, the aggressor defense remains viable, but it requires a close examination of the totality of the circumstances. Evidence of verbal provocation or angry gestures may be insufficient, standing alone, to establish that a claimant was the aggressor when the other party initiates physical violence. Video evidence should be reviewed carefully, and the absence of audio may limit the ability to draw firm conclusions about verbal threats or provocations.

For claimants, the case underscores the significance of the traveling employee doctrine and the street-risk doctrine. Employees whose jobs place them in public settings are exposed to risks that may be deemed incidental to employment, including assaults by third parties. Demonstrating that the employee was engaged in job duties at the time of injury remains central to compensability.

By: Kisa P. Sthankiya

In Safeway Scaffolding/Safeway Services, LLC v. Illinois Workers’ Compensation Commission, 2025 IL App (5th) 250298WC-U, the claimant sought benefits pursuant to §19(b) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., for injuries sustained to his low back. The claimant was employed as an insulator and sustained an undisputed low back injury on October 26, 2018. He underwent an L4 through S1 lumbar spine fusion surgery on February 11, 2019, and was authorized to return to work on May 17, 2019, with a 20-pound lifting restriction and to avoid repetitive bending, stooping, or twisting.

On June 6, 2019, a light duty assignment was made commencing on June 10, 2019. The claimant testified that he did not appear on June 10, 2019, due to a flood that caused bridge and ferry closures causing a 4-hour drive to work, and he had a 30-minute sitting restriction. He also testified that the job was a sham offer based on his situational experience. The respondent’s witness testified that the light duty job assignment was within the claimant’s restrictions and consisted of necessary tasks and was not a sham. He also testified that the position required making and trimming bandings. The job did not require any lifting.

Dr. Coyle amended the restrictions on July 2, 2019, to include 30 pounds lifting and intermittent sitting, standing, and walking every 30 minutes.

On July 7, 2019, the claimant contacted the employer and left a voicemail that he would return to work in a light-duty capacity. The employer did not respond to this call.

The claimant continued to treat thereafter until October 14, 2019, when he was released to maximum medical improvement by Dr. Coyle. He recommended the claimant seek physiatrist treatment if necessary.

Thereafter, the claimant was examined by Dr. Wayne at respondent’s request. He opined that the claimant could have returned to work light duty on May 17, 2019, and full duty as of October 14, 2019.

On January 10, 2020, the respondent sent an email offering to bring the claimant back to work full duty consistent with Dr. Wayne’s opinions. There was no restriction on driving, and they believed the claimant could pull over if he had issues driving to work.

The claimant testified that he wanted to proceed with additional treatment as recommended by Dr. Coyle. He understood he had been offered a job to return to work full duty. However, he did not believe he would be able to perform the job of an insulator and requested vocational rehabilitation services.

The arbitrator determined that the claimant had sustained a compensable accident and that his condition was causally related but that no further treatment was necessary. Medical benefits were awarded through the date of maximum medical improvement (MMI) of October 14, 2019. The arbitrator believed the petitioner could return to work full duty based on both Dr. Coyle and Dr. Wayne’s inability to find any explanation for the claimant’s alleged low-back pain when sitting. He also found significant Dr. Wayne’s findings of symptom magnification and Dr. Coyle’s opinions that the claimant did very well after surgery, could walk seven miles a day, and was in excellent health and physical condition. Prospective medical treatment was denied. Additionally, the arbitrator denied the claimant temporary total disability (TTD) after his refusal to return to work in a light-duty assignment after July 8, 2019. The arbitrator also denied vocational rehabilitation benefits.

The Commission affirmed and adopted the arbitrator's decision with certain modifications. On review, the circuit court of Madison County found that the Commission’s award of TTD benefits and its denial of maintenance benefits and vocational rehabilitation were against the manifest weight of the evidence. The court concluded that the claimant had not declined the light-duty job offered by the respondent.

On appeal, the respondent raised two principal issues. First, the Commission’s finding that the claimant’s refusal for light-duty work restrictions was not against the manifest weight of the evidence. Secondly, the Commission’s decision to deny maintenance and vocational rehabilitation services should be upheld.

The central issue before the court was whether the Commission’s denial of TTD benefits after July 8, 2019, was against the manifest weight of the evidence. Relying on Gallentine v. Industrial Commission, 201 Ill.App.3d 880, 559 N.E.2d 526, 147 Ill.Dec. 353 (2d Dist. 1990), and Presson v. Industrial Commission, 200 Ill.App.3d 876, 558 N.E.2d 127, 146 Ill.Dec. 164 (5th Dist. 1990), the court emphasized that the dispositive inquiry is whether the claimant’s unemployment results from medical incapacity or from a voluntary refusal of available work. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶27. They noted that the record supported the Commission’s conclusion that the claimant never intended to return to work for the respondent, notwithstanding repeated offers of light-duty and, later, full-duty employment. The claimant’s failure to report to work on June 10, 2019, his characterization of the position as a “sham,” and his lack of response to subsequent job offers collectively undermined his claim for continued TTD. They noted that the record supported that the job offer was not a sham given the respondent’s testimony. They noted that despite the offer that light duty work continued to be available, the claimant never presented for a light duty assignment.

Significantly, the court rejected the claimant’s argument that the absence of MMI was dispositive. While MMI often marks the natural endpoint of TTD, the court reiterated that it is not a prerequisite to the termination of TTD benefits. An employee who is medically capable of working within restrictions and who declines an offer for light duty work is not temporarily totally disabled within the meaning of the Workers’ Compensation Act, even if additional treatment is contemplated. 2025 IL App (5th) 250298WC-U at ¶54, citing Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, 236 Ill.2d 132, 923 N.E.2d 266, 276, 337 Ill.Dec. 707 (2010) (TTD benefits may be “suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor”).

The court also gave substantial deference to the Commission’s credibility determinations. The Commission reasonably discounted the claimant’s explanations for failing to report to work, particularly where certain restrictions were imposed only after the job offer was made and where medical evidence contradicted the claimant’s assertions regarding his inability to drive or sit. The Commission’s rejection of the “sham job” characterization was likewise supported by detailed testimony regarding the job’s duties and its consistency with the claimant’s restrictions.

Viewed collectively, the decision reinforces the evidentiary burden on claimants to demonstrate not only ongoing medical need but a genuine inability to work. It also confirms that well-documented, bona fide light-duty offers that have been declined can serve as a defense to a claim for TTD benefits.

The second issue concerned whether Commission’s original decision denying maintenance and vocational rehabilitation benefits was against the manifest weight of the evidence. The claimant argued that vocational rehabilitation was necessary because he could not return to his pre-injury job as an insulator and that the respondent failed to accommodate his restrictions. The court rejected this argument, holding that the Commission’s decision was not against the manifest weight of the evidence.

The court began by reiterating that vocational rehabilitation and maintenance are not automatic entitlements under §8(a) of the Workers’ Compensation Act. The claimant may only receive maintenance benefits while engaged in a prescribed vocation rehabilitation program. Rather, they are awarded where a work-related injury results in diminished earning capacity and where rehabilitation is reasonably likely to restore or increase that capacity. 2025 IL App (5th) 250298WC-U at ¶65, citing National Tea Co. v. Industrial Commission, 97 Ill.2d 424, 54 N.E.2d 672, 676, 73 Ill.Dec. 575 (1983). Importantly, maintenance benefits are incidental to participation in an approved vocational rehabilitation program and are payable only while the employee is actively engaged in such a program. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65, citing Euclid Beverage v. Illinois Workers’ Compensation Commission, 2019 IL App (2d) 180090WC, ¶29, 124 N.E.3d 1027, 429 Ill.Dec. 517.

Here, the Commission found that vocational rehabilitation was neither necessary nor appropriate because the claimant was capable of returning to work within his restrictions and had been offered suitable employment by the respondent. The record demonstrated that the claimant’s skills and physical abilities were sufficient to obtain employment without additional training, particularly given medical opinions supporting a return to full duty. Moreover, the claimant’s failure to accept light-duty work supported the conclusion that he lacked the requisite intent to return to work — a factor that independently weighs against an award of vocational rehabilitation.

The court also distinguished this case from situations in which an employer refuses to provide suitable work after an employee expresses a willingness to return. Unlike cases such as Otto Baum Company, Inc. v. Illinois Workers’ Compensation Commission, 2011 IL App (4th) 100959WC, 960 N.E.2d 583, 355 Ill.Dec. 701, the evidence in this case showed that the respondent consistently maintained the availability of work within the claimant’s restrictions and communicated that availability through counsel as documented in an email. Safeway, supra, 2025 IL App (5th) 250298WC-U at ¶65. The claimant’s failure to respond to or pursue those offers precluded a finding that vocational rehabilitation was necessary.

The Commission’s original decision was reinstated and the matter remanded with directions.

NWCDN State News – West Virginia

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

May 31, 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.

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):

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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.