State News

In 2015, Claimant sustained a thoracic spine injury while employed for Belvedere Fire Company. He was compensated for thoracic spine permanency. He voluntarily closed the claim by global commutation in 2018. In 2023, while working for the City of Wilmington, climbing stairs with a pack of gear during a call, he felt pain in his thoracic spine area, missed several weeks from work, and received conservative care to the thoracic spine area. Claimant filed a Petition seeking acknowledgement of the 2023 injury, relying on the opinion of claimant’s family physician. Employer denied the claim based upon the factual circumstances of the event, and medical opinion of Dr. Samuel Matz. Board Hearing was held. The Board issued a Decision accepting Employer’s position that the successive workers’ compensation carrier standard set forth in Nally v. Standard Distributing, 630 A.2d 640 (Del. 1993), applied, denying the Petition, as claimant failed to satisfy that there was both (1) an untoward event, that (2) was the proximate cause of a new injury. 

Claimant appealed to the Superior Court, arguing Nally does not apply when the first work injury claim is resolved by global commutation, and in the alternative, asserting that if Nally applies, the Board applied it incorrectly. The Superior Court rejected both arguments.

Claimant appealed to the Delaware Supreme Court. On 12/4/25, the Court issued a Decision affirming the Board’s ruling. The Court was clear that Nally assigns liability between successive insurance carriers in cases where an employee seeks compensation for a work-related injury that is causally related to an injury compensated by a previous employer or carrier. In order to shift liability, Nally requires an (1) untoward event and (2) new injury. The question of whether Nally was correctly applied was not a close one. As Dr. Matz testified, the injury was to the same area of the spine, and diagnoses very similar. The nuance of claimant’s first claim being commuted does not mean that the Board applied the wrong standard. The fact that there was no record evidence of symptoms for several years pre-2023 injury also did not change the standard, especially considering claimant’s acceptance of compensation for a permanent injury associated with the 2015 claim, which presupposes that the injury had not healed.

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

Corey Ferrell v. City of Wilmington, No. 152, 2025 (Del. Dec. 4, 2025). 

The Oklahoma Supreme Court found recently there is no limit on the number of Form A's that an injured worker can be granted to change the treating physician, as long as the Administrative Law Judge agrees.

In the case of St. Anthony v. Goodwin, 2026 OK 3, the Court examined 85A O.S. Sec. 56(B) which the insurance carrier argued allowed only one Form A per case. The ALJ ordered a second Form A. That was appealed, and the ALJ's decision was reversed 2-1 by the Court of Civil Appeals. The Supreme Court granted certiorari and reversed COCA.

Justice Kane, writing for the 6-2 majority, said the statute does not say what happens after the ALJ grants the first automatic Form A. The Supreme Court said it should be up to the ALJ to determine if further changes of the treating physician for different body parts are warranted.  Justice Kane wrote:

   "The statute does not limit the number of applications that may be filed, the number of changes that may be ordered per claim, or the number of changes per injured body part. Nor does the statute require the ALJ to order one change per body part."

Bottomline, the ALJ and the Commission shall make the judgment call on changes in the treating physician based upon the facts in each individual case.  The case grants the ALJ a lot of discretion regarding the treating physician on a claim.

Death investigation professionals aka last responders must have a powerful lobby.  DWC adopted rule amendments that take effect January 29, 2026 to implement Texas Labor Code Section 504.057 which requires expedited medical benefits and accelerated medical dispute resolution for claims for medical benefits by a “death investigation professional” who sustains a serious bodily injury in the course and scope of employment, and requires that the death investigation professional inform DWC and the independent review organization that a contested case hearing or appeal involves a death investigation professional. 
 
When the legislature enacts laws that provide preferential treatment for such a narrowly defined class of injured workers, it can cause more problems than it solves with increased regulatory complexity, among other things.  We recommend doing a study in a year or two to see how many times these new “last responder” rules are invoked.  Let us know your prediction!       
 

Copyright 2026, Stone Loughlin & Swanson, LLP 

DWC announced that its 2026 initiatives include online medical fee dispute submissions, remote interpreters for CCHs, a pilot program to explore the use of AI-based interpretation tools, and use of AI for a customer service knowledge base.
 
If you haven’t spotted the trend yet, the watchword here is “AI,” the use of which is gradually encroaching on the practice of law, as it is in so many other fields.  For all AI’s benefits, there is reason to worry about his increasing presence.
 
AI has the capacity to invent facts and create information that does not exist to support its response and/or to appease the perceived bias of the user. One well-known example is of a lawyer who sued Colombian airline Avianca several years ago, alleging that a food and beverage cart injured his client’s knee while he was onboard a flight. The lawyer submitted a brief using ChatGPT to do his legal research, but the AI tool invented case law entitled Martinez v Delta Air Lines, Zicherman v Korean Air Lines, and Varghese v China Southern Airlines. When Avianca’s attorneys informed the judge that they could not locate the cases cited, the plaintiff’s lawyer had to ‘fess up and admit he had used ChatGPT. He said he asked ChatGPT to cite its sources and AI responded that the cases could be located in the Westlaw and LexisNexis databases. The judge ultimately sanctioned the lawyer and his law firm.

Likewise, our firm has received communications from opposing attorneys who have relied extensively on AI programs to generate their correspondence, a great deal of which proved to be incorrect.  Citations to the Texas Labor Code and Texas Administrative Code are often out-of-date, or otherwise non-existent.  Case law and Appeals Panel Decisions have similarly been misinterpreted and misquoted.  It has been our experience that checking and correcting AI-generated documents often offsets the supposed time saved in relying on it in the first place.

AI as a tool for collating data remains in its infancy, and as with any infant, it requires constant supervision.  While there are benefits to its use, there are substantial risks, too, and for that reason it is the policy of this firm not to rely on it in any capacity.

Copyright 2026, Stone Loughlin & Swanson, LLP

At the DWC Quarterly Stakeholder Meeting held on January 21, 2026, the DWC reported on their 2025 accomplishments and their plans for 2026.
 
Online Tools
 
New online tools introduced by the DWC over the last year include: 

• A nifty benefit estimator tool that even includes a calculator for estimating the average weekly wage when there are multiple employers: Benefits Estimator
• An E-File online reporting tool for non-subscribers - Employer E-File - where employers can report workplace injuries, illnesses, and deaths. The too also allows non-subscribers to file, save, and manage annual notices online.  
• A searchable database for all kinds of interesting claims data collected by DWC:

Copyright 2026, Stone Loughlin & Swanson, LLP

Commissioner of Insurance Cassie Brown retired after more than four years overseeing the Texas Department of Insurance. Governor Greg Abbott appointed Amanda Crawford in her stead to oversee the department, for a term set to expire on 2/1/27. Ms. Crawford was serving as the executive director of the Department of Information Resources and is Texas’ chief information officer. It remains to be seen if and how the change in leadership at TDI will impact DWC since it is technically a division within the Department of Insurance.
 
In ALJ news, Barham Richard has joined the DWC as a traveling Administrative Law Judge based out of Austin. Mr. Richard has an extensive background serving as legal counsel for the Texas Commission on Environmental Quality, Lone Star Legal Aid, and the Texas Office of Public Utility Counsel. He most recently served as a Senior Staff Attorney for the Texas Medical Board. We are glad to have him join us in the wonderful world of workers’ compensation!
 
Congratulations are also in order to Christina Figueroa, Sarah Hart, and Avery Fortenberry, all of whom have been recently promoted from PROs to BROs. We look forward to working with them all during our Benefit Review Conferences.

Change is also afoot in Lubbock, where the DWC is searching for a new home for its offices and seems set on giving up its lovely quarters at 22 Briercroft Office Park.  For those who have never made the attempt, trying to locate the Lubbock Field Office for the first time is something of a right-of-passage hazing ritual among system participants, obscured as it is behind trees and secreted away along the side of the building.  Hopefully the new location is a bit more conspicuous!

 
Copyright 2026, Stone Loughlin & Swanson, LLP

Workers’ compensation insurers just secured a major victory in the Texas air ambulance litigation.  On January 16, 2026, the State Office of Administrative Hearings (SOAH) issued decisions in the two major groups of air ambulance cases pending at SOAH.
 
In both cases, the Administrative Law Judges (ALJs) found that for the years in issue from 2011 – 2013, fair and reasonable reimbursement for the base rate ranges from 128.8% to 139.3% of Medicare and the mileage rate ranges from 119.1% to 128.8%.  The ALJs rejected the air ambulance providers’ proposed reimbursement that ranged up to more than 500% of Medicare for the average total rate. SOAH previously rejected the air ambulance providers’ argument that the federal Airline Deregulation Act (ADA) preempts the “fair and reasonable” reimbursement standard and therefore, they should be paid their full billed charges.
 
The decisions issued by SOAH in these cases are notable for the depth of their analysis, each over a hundred pages, which followed a four-day hearing in the first case and a three-day hearing in the second case, both with numerous expert and fact witnesses.  Texas Mutual, which has around a 40% market share, should be commended for doing the heavy lifting in these cases.
 
The air ambulance providers, which are private equity-owned, will likely appeal these latest SOAH decisions in their ongoing effort to extract more money from the Texas workers’ compensation system.
 
As of December 2025, there are 2,183 air ambulance disputes at DWC, dating back to at least 2014, and this number will continue to rise as the air ambulance providers file new disputes.

Copyright 2026, Stone Loughlin & Swanson, LLP

NWCDN Ohio State Law Update – February 2026

Ohio Bureau of Workers’ Compensation Update

BWC Actions

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

The Ohio Bureau of Workers’ Compensation (BWC) Board of Directors is considering an additional 1% reduction of Ohio workers’ compensation rates, potentially saving Ohio’s private employers nearly $10 million in premiums. If approved by the BWC Board, this would mark the eighth consecutive rate reduction under the current Administration and the 17th decrease in the past 18 years, continuing a long-standing trend of lowering costs for Ohio businesses.

The BWC Board will vote on the proposal at its Feb. 27 meeting. If approved, the new rate would take effect July 1. “We remain focused on keeping premiums low for Ohio’s employers,” said BWC Administrator/CEO Stephanie McCloud. “Today, the average rate levels for Ohio’s 245,000 private and public employers are at their lowest point in more than 65 years."

The proposed 1% rate cut represents an average statewide premium change, including administrative costs. The actual premium paid by individual private employers depends on several factors, including the expected future claims costs in their industry, their company’s recent claims history, and their participation in various BWC programs.

State Marijuana Law Repeal Effort Targets New Laws, Employers Brace for Changes

Ohio Attorney General Dave Yost has cleared the way for a campaign to repeal a new law tightening the state’s marijuana and hemp regulations. Yost certified the title and summary of a revised referendum petition challenging Senate Bill 56, allowing supporters to begin collecting signatures to put the issue before voters. The law is scheduled to take effect in March.

Passed by lawmakers in December, the measure restricts most intoxicating hemp products and adds penalties for certain marijuana conduct that voters legalized in 2023. Manufacturers said evolving cannabis policy creates added complications for workplace safety and drug rules.

Ohio Judicial Actions and Decisions

Challenge to Ohio Industrial Commission Authority

Lawsuits filed in Franklin County, Ohio are challenging whether Ohio’s workers’ compensation appeals judges meet legal qualifications, raising questions about how the state’s system for resolving disputes is administered.

The suits argue that the three members of the Ohio Industrial Commission, which hears appeals of BWC decisions, do not meet a statutory requirement for six years of recognized expertise in workers’ compensation law. Attorneys for injured workers say that could affect the legal standing of past rulings. Supporters of the commissioners maintain the officials are qualified and that the lawsuits are aimed at reversing unfavorable decisions.

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Berry v. Ohio Industrial Commission, 2025-Ohio-4720 (October 16, 2025)

In State ex rel. Berry v. Industrial Commission, the Ohio Supreme Court ruled that courts are not required to defer to the Industrial Commission’s interpretations of Ohio’s specific safety requirements. Courts must instead independently interpret them, particularly when the language is clear.

The Ohio Supreme Court held that courts should not merely defer to the Industrial Commission’s legal interpretations of the state’s specific safety requirements when reviewing whether an employer violated them. The court somewhat aligned itself with the U.S. Supreme Court’s landmark case, Loper Bright, which directed federal courts to independently interpret ambiguous statutes rather than rely on agency interpretations, as we have previously reported. But unlike the Loper Bright decision, which generally benefited employers dealing with federal agencies, the Berry decision could have the opposite effect when their injured employees accuse them of violating the state’s specific safety requirements. Ohio’s specific safety requirements are similar to OSHA’s safety standards, and Ohio employers are generally subject to both.

The Berry case stemmed from an employee’s applying for a VSSR award against his employer in the Industrial Commission. Generally, when an employee applies for a VSSR award, the BWC conducts an investigation, after which the Industrial Commission conducts a hearing to determine if the employer violated one or more of the specific safety requirements identified by the employee and whether any such violation contributed to the employee’s injuries. Although Ohio law requires the Industrial Commission to interpret the state’s workers’ compensation laws in favor of employees, that is not true for VSSR proceedings, where the benefit of any ambiguity of a rule would typically be interpreted in favor of the employer. Because of that, the Industrial Commission typically interprets the state’s specific safety requirements in a way that benefits employers in VSSR proceedings. That is what happened in the Berry case.

In a mandamus proceeding, which is similar to an appeal, brought by the employee after the Industrial Commission denied his application for a VSSR award, the 10th District Court of Appeals unanimously concluded that the Industrial Commission erred in denying the employee’s VSSR application and found the Industrial Commission’s interpretation of its own safety rules no longer warranted judicial deference. Two of the three appellate judges went further, holding that the Industrial Commission should find in favor of the employee and award him compensation.

In Berry, the Ohio Supreme Court agreed with the Court of Appeals that courts are not required to defer to the Industrial Commission’s legal interpretations of the specific safety requirements, particularly when the requirements’ language is clear. However, it found that the Court of Appeals went too far in ordering an award, emphasizing that determining whether a violation occurred and caused an injury involves factual questions—a power reserved exclusively for the Industrial Commission. The court issued a limited writ of mandamus, like an order, directing the Industrial Commission to revisit the case and resolve the factual issues it had previously bypassed but considering the interpretation of the specific safety requirements at issue, as determined by the Court of Appeals.

Although the Industrial Commission may not interpret the state’s specific safety requirements any differently than it had, employers should expect that their employees will likely take the position at the Industrial Commission and in the courts afterwards that the applicable safety requirements should be interpreted more broadly in favor of finding employer liability and an award. Employees will also have another argument to make at the Court of Appeals, now being able to argue that the Berry decision makes it incumbent on the Court of Appeals to interpret the specific safety requirements at issue and not simply rubber-stamp the Industrial Commission’s interpretation. The Berry case also signals that Ohio courts may be less inclined to defer to other administrative agencies, resulting in broader impacts beyond the workers’ compensation system. Employers should continue to monitor legal updates in this area.

Temporary Total Disability (TTD)

State ex rel. Papageorgiou v. Avalotis Corporation, 2025-Ohio-5371 (December 3, 2025).

The Ohio Supreme Court affirmed the denial of temporary total disability benefits to an injured worker who did not report for a light-duty assignment that two doctors said he could do.

In State ex rel. Papageorgiou v. Avalotis Corp., Evangelo Papageorgiou, an employee of Avalotis injured his neck on the job in late May 2018 and underwent same-day surgery. On June 5, one of the surgeons who operated on him said he could do light-duty work with no heavy lifting. Later that month, an Avalotis project manager offered him a light-duty job that complied with the restriction on heavy lifting and instructed him to report the next day.

Mr. Papageorgiou’s treating physician reviewed the written job offer and agreed that Mr. Papageorgiou was capable of doing the work. Nevertheless, he did not show up for work. Avalotis stopped paying him and deemed his employment abandoned.

Mr. Papageorgiou sought temporary total disability benefits beginning the day after his injury. Avalotis opposed, arguing he was ineligible because he refused light-duty work. A district hearing officer granted TTD from June 28, 2018, based on Avalotis’ payment of wages in lieu of TTD benefits. A staff hearing officer, however, denied TTD after that date, concluding that Mr. Papageorgiou had voluntarily abandoned his job by rejecting the suitable position. After the Industrial Commission declined further review, Mr. Papageorgiou asked the 10th District Court of Appeals for a writ of mandamus granting TTD or ordering a new hearing. The appellate court declined his request.

The appellate court emphasized that Ohio law bars payment of TTD during any period in which work within an employee’s physical capabilities “is made available by the employer or another employer.” Avalotis made such work available, the court said, and both physicians — including Mr. Papageorgiou’s treating doctor — confirmed that the job fell within his medical restrictions. His failure to report constituted a refusal of suitable employment.

Because that evidence supported the commission’s conclusion, the court found no abuse of discretion.

The Supreme Court rejected Mr. Papageorgiou’s argument that the staff hearing officer should have determined whether Avalotis made the offer in good faith. The court held that he had not properly raised the issue of employer good faith during the administrative process and, in any event, had not offered a meaningful argument or evidence on appeal showing bad faith. His only claim — that the offer contained a single stated restriction — was characterized by the court as a challenge to whether the job was “suitable,” not an indication of bad faith.

The court further noted that the hearing officer’s reference to “voluntary abandonment” was not central to the outcome. The core rationale, the court said, was that Avalotis provided work that met Mr. Papageorgiou’s physical restrictions and he refused it; therefore, he was not entitled to TTD benefits. The state high court rejected Mr. Papageorgiou’s suggestion that the job was “legally deficient” because it did not set forth the physical requirements for the light-duty position, noting that he cited no authority to support that contention.

© Copyright 2026 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

As of January 1, 2026, the Mississippi Workers’ Compensation Commission has appointed the Commission’s newest Administrative Judge, Nick Saucier.

Nick Saucier succeeds the Administrative Judge Melba Dixon, whose retirement was announced in the fall of 2025. Judge Dixon spent her professional career in public service, with 28 years with the Mississippi Workers’ Compensation Commission and more than 41 years with the State of Mississippi.

Judge Saucier brings substantial experience in Mississippi workers’ compensation law, including more than 15 years representing employers and carriers in all phases of workers’ compensation litigation. Prior to his new role as Administrative Judge, he was the Managing Claims Attorney and Litigation Manager for Stonetrust Commercial Insurance Company, and before that he was a practicing attorney at Markow Walker, P.A. In addition, Judge Saucier served two decades as a Judge Advocate in the Mississippi Army National Guard and currently holds the rank as Colonel.

LEGISLATIVE AND CASE LAW UPDATE

Brinks Global Services And Arch Insurance Company v. Labor Commission And James Beaty, 2025 UT App 191 (Issued December 20, 2025)

                James Beaty, a truck driver was injured on the job from a truck accident. He filed and was awarded workers compensation benefits. His Employer appealed the award. On appeal, the Appeals Board found the medical panel failed to acknowledge the Beaty’s performance evaluation February 2021 showed “ he still lacked the strength and capacity to do his duties” and affirmed the ALJ ruling concluding that Beaty’s work accident medically caused a “permanent worsening of his pre existing (back) condition “and that the surgery on his lumbar spine was necessary to treat such worsening “

                The Employer Brinks challenged the Appeals Board ruling regarding the issue of the lumbar spine surgery claiming it was not supported by the evidence. On further appeal, the Utah Court of Appeals held the Appeals Board did not err in rejecting the medical panel’s report and by relying on other admissible and substantial evidence in the record.

Theresa Christensen v. Salt Lake Conty v. Labor Commission, 2025 UT 55 (Nov .13, 2025)

                Theresa Christensen sued her former employer (Salt Lake County) under the Utah Antidiscrimination Act claiming the County retaliated against her after she complained her supervisor was sexually harassing her. The Labor Commission Appeals Board concluded Christensen had proven the County retaliated against her and awarded compensation for certain damages she suffered. However, the Appeals Board denied her request for statutory attorney fees based on the Utah Supreme Court’s prior opinion in Injured Worker’s Ass. Of Utah State v. State, 2016 UT 21, 334 P3d14, which foreclosed such an award.

                On Appeal, the Utah Court of Appeals upheld the Boards decision and adopted the U.S. Supreme Court’s test from Burlington Northern Santa Fe Railway v. White, 548US53(2006) which held to constitute actionable retaliation, an employer’s action must be one “that a reasonable employee would have found to be maternally adverse”, “such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” However, on the attorney fees issue, the Court of Appeals disagreed with the Appeals Board and concluded the Board was free to award attorney fees.

                Both parties sought certiorari review which the Utah Supreme Court granted. With respect to the meaning of “adverse action” the Utah Supreme Court agreed with the Court of Appeals adopting the Burlington Standard, but disagreed with its application of the standard for the first time on appeal. The Utah Supreme Court held a remand was thus necessary because it was not apparent from the record that the Board’s decision can be upheld. Accordingly the Supreme Court remanded the case to the Appeals Board so it can apply the Burlington Standard for itself and make additional and necessary findings and conclusions.

                In addition, the Utah Supreme Court held that the case of “injured Workers” does not prevent the Labor Commission from awarding attorney fees or from evaluating those awards for reasonableness. “Accordingly, we affirm in part, reverse in part, and remand to the Board for further proceedings.” In doing so, the ultimate question before the Board was whether Christensen had proven the elements of a retaliation claim by a preponderance of the evidence, not whether she has satisfied the steps of the McDonald Douglas test.

“Finally, if the Board concluded that Christensen should “prevail on remand, nothing we said in Injured Workers prevents the Board from awarding Christensen her attorney fees and evaluating the amounts she requests for reasonableness.”

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