State News

NWCDN State News – West Virginia

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

October 7, 2025

Supreme Court of Appeals of West Virginia

The Supreme Court of Appeals mourns the loss of Justice Timothy Armstead who died at the age of 60 on August 26, 2025. He served on the Court for seven years with two terms as Chief Justice in 2020 and 2024. A former Speaker of the House of Delegates of West Virginia, Justice Armstead was a dedicated public servant to the State of West Virginia. Senior Status Justice John A. Hutchison will serve temporarily following Justice Armstead’s death. The press release and poignant remarks from the Supreme Court can be found here:

https://www.courtswv.gov/sites/default/pubfilesmnt/2025-08/Supreme%20Court%20Mourns%20Loss%20of%20Justice%20Armstead.pdf

Justice Thomas H. Ewing was publicly sworn in on October 6, 2025. Justice Ewing was appointed on August 6 by Governor Patrick Morrisey to fill the seat vacated by Justice Beth Walker, who retired earlier this year. He was previously a circuit judge in the Fifteenth Judicial Circuit (Fayette County), where he had served since January 2019 following his appointment by Gov. Jim Justice. He was then elected as a circuit judge in 2020 and reelected in 2024. Judge Ewing was an attorney at Kay Casto & Chaney, PLLC from 2004 until his appointment to the bench.

In the middle of the Fall Term of Court in 2025, the Court has not issued any signed opinions to date but has issued 16 memorandum decisions related to workers’ compensation cases. One memorandum decision case of note is discussed below.

Intermediate Court of Appeals of West Virginia

In the Fall Term of Court in 2025, the Court has issued one signed opinion to date and has issued 14 memorandum decisions related to workers’ compensation cases.

Expenses for Workers’ Compensation Insurers Will Continue to Rise Due to WV Courts’ Deference to Claimants With Preexisting Conditions

One case of note spans the spring and fall terms of court in the ICA and in the Supreme Court of Appeals is Abby L. Boyes v. Hospice of Southern West Virginia, Inc..

The West Virginia Intermediate Court of Appeals continues to review and analyze compensability issues under the Moore v. ICG Tygart Valley decision issued by the West Virginia Supreme Court of Appeals.  In a recent Intermediate Court decision, Abby L. Boyes v. Hospice of Southern West Virginia, Inc., the claimant sought to add additional diagnoses to her workers’ compensation claim.  She was injured at work in October 2020 when a bariatric bed rolled over her right foot.  Claimant was initially seen at MedExpress where she was diagnosed with a contusion of the right foot.  An x-ray revealed degenerative changes and a slight angulation of a toe that was attributed to an old, healed injury.  The claim administrator held the claim compensable for contusion. 

A month after the injury, the claimant saw a podiatrist and was diagnosed with capsulitis of the right foot, Morton’s neuroma of the third interspace of the right foot, and other enthesopathies.  The claimant requested the diagnoses “capsulitis of the right foot” and “Morton’s neuroma” be added as compensable conditions in her workers’ compensation claim.  The claim administrator denied those requests based on a physician review opinion that Morton’s neuroma is rarely a traumatic condition.  However, the physician reviewer noted that the claimant had a crushing injury of the foot.

The claimant returned to work part time.  In June 2021, the claimant saw anther physician for foot complaints.  That physician opined the foot swelling could be mild residual inflammation or it could be due to the claimant’s weight and diabetes.

In August 2021, the claimant requested the following diagnoses be added as compensable conditions in her workers’ compensation claim: “crushing injury of the right foot, disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.”  The claim administrator denied the requested diagnoses on the basis of a physician opinion finding that neither x-rays nor an MRI of the foot revealed evidence of tendon or ligamentous disruption to substantiate a finding of capsulitis.

The claimant protested the denial and the issue reached the Intermediate Court of Appeals, which remanded the issue to the West Virginia Workers’ Compensation Board of Review requesting a more detailed analysis of the diagnosis of crushing injury of the right foot, ligament disorder, and Morton’s neuroma. 

When the issue reached the Intermediate Court of Appeals for the second time, the claim argued that the diagnoses should be added to her claim and that she was entitled to the presumption established under the Moore case which held:

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 symptom was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards.  There must still 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.

247 W. Va. 292, 294, 879 S.E.2d, 779, 781 (2022).  The Intermediate Court analyzed this case under the Moore standard as well as the standard outlined in Gill v. City of Charleston, which held “[a] noncompensable 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 injury may be found compensable.”  236 W. Va. 737, 783 S.E.2d 857 (2016).

The Intermediate Court found that the Board of Review had properly denied the diagnoses of disorder of ligament, right foot; Morton’s neuroma of the third interspace of the right foot; capsulitis of metatarsophalangeal of the right foot; and localized edema.  However, the Court found the claimant established the diagnosis of a crushing injury of the foot was causally related to the workplace injury and that the Moore presumption was not rebutted even though the claimant had prior foot injuries.  The Intermediate Court noted that the Board of Review had incorrectly reasoned that because the other diagnoses were rejected, the crushing injury must also be rejected.  The Intermediate Court also faulted the Board of Review for failing to acknowledge that the claim administrator’s physician reviewer had commented that the claimant had a crushing injury.  As a result, the Intermediate Court reversed the Board of Review on the crushing injury diagnosis and held that the crushing injury diagnoses must be held compensable in the workers’ compensation claim. 

In September 2025, the West Virginia Supreme Court of Appeals affirmed the Intermediate Court’s decision in a Memorandum Decision, finding no reversible error. See Boyes v. Hospice of Southern West Virginia, Inc., No 25-200, (W. Va. September 12, 2025) (memorandum decision).

This case demonstrates West Virginia courts’ recent move to find for claimants if they can show their preexisting conditions were not symptomatic immediately before the work injury.  In the Boyes case, the claimant had a prior injury to the same foot as well as other comorbidities that could be causing her complaints.  In fact, she had seen her podiatrist six years before the workplace injury for peroneal tendinitis, two metatarsal stress fractures, and chronic ankle swelling.  Moreover, the IME doctor who examined her in this case found no objective evidence of disease from the work injury.  Rather than rely on Gill to find the diagnosis to be noncompensable because of preexisting conditions, the Intermediate Court relied on Moore to find for the claimant, requiring the claim administrator to hold an additional diagnosis as compensable.  Decisions like these will continue to cause more expense for workers’ compensation insurers who will be required to add diagnoses to claims when the diagnoses are likely related to symptoms from preexisting conditions.  It will also result in more litigation when diagnoses are denied based on preexisting conditions. 

Compensable Dust Exposure and Board of Review Standard of Evidence Review

In the case of Boyce v. Quinwood Coal Company, LLC, 2025 WL 2792731, (W. Va. Ct. App. 2025), the ICA issued a written opinion in the consolidated appeal of two occupational pneumoconiosis (OP) claims where the petitioners argued the West Virginia Workers’ Compensation Board of Review (BOR) failed to properly examine the evidence and erred in determining the petitioners were not exposed to hazardous occupational dust during employment. Judge Dan Greear wrote the opinion of the ICA that concluded that the BOR failed to analyze all the evidence in the records of dust exposure in both of the underlying cases. Accordingly, the ICA vacated the orders and remanded both matters to the Board.

In both cases the employee presented evidence regarding exposure to occupational dust during the course of employment. The evidence also consisted dust sampling records demonstrating the individual employee was not exposed to hazardous levels of airborne dust during his employment that exceeded the limits established by MSHA, based on the dust sampling result for the respective period of employment. The claim administrators found that the employees were not exposed to the hazards of dust during employment.

Under West Virginia Code § 23-4-1(b) (2024), a claimant seeking workers’ compensation benefits for OP must show exposure to the hazards of OP during their employment and contraction of OP. Additionally, a claimant must prove exposure in the State of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to such hazards, or for any five of the 15 years immediately preceding the date of his or her last exposure. The Court notes that

‘In a claim for occupation pneumoconiosis under the Workmen’s Compensation Law, a ‘hazard,’ as contemplated by [West Virginia] Code [§] 23–4–1, as amended, exists in any work environment where it can be demonstrat[ed] that there are minute particles of dust in abnormal quantities.’ Syl. Pt. 3, Fenton Art Glass Co. v. West Virginia Office of Ins. Comm’r, 222 W. Va. 420, 664 S.E.2d 761 (2008). Thus, to establish a compensable OP claim, the burden is on the claimant to show exposure to abnormal quantities of dust exposure while in the workplace.

In defending a claim for OP, employers may rely upon W. Va. Code of State Rules § 85-20-52.2 (2006) which states in relevant part:

If the employer submits credible evidence demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and/or MSHA regulations for the dust alleged by the injured worker, then the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may consider that the dust exposure alleged by the injured worker does not suffice to satisfy the exposure requirements of W. Va. Code §§ 23-4-1(b) and 23-4-15(b) only for the period(s) covered by the sampling or testing.

The Court found that Section 85-20-52.2 does not mandate a decision in favor of the employee, even if all requirements of W. Va. Code § 23-4-1(b) are met. Similarly, the wording of section 85-20-52.2 permits credible dust sampling results to be considered as sufficient evidence to defeat liability, but the regulation “does not serve as an automatic immunity provision for the employer. Rather, as expressly stated in West Virginia Code § 23-4-1(f), a ‘consideration of all the circumstances’ is necessary to determine if a claimant has met his or her burden for establishing a compensable workers’ compensation claim.” Finally, as the West Virginia Legislature expressly stated in W. Va. Code § 23-4-1g(a), in part, “[u]nder no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party’s interests or position.” Moreover, the Court noted, in this same provision, the legislature again noted the necessity of “weighing all of the evidence.”

The ICA would not reweigh the Board of Review’s finding the reports and deposition testimony of the employers’ experts were credible and admissible for purposes of section 85-20-52.2.4. The Court noted that the employers’ certified industrial hygienist testified as an expert regarding the procedure and methodology for air quality sampling and testing at the employers’ respective facilities, and the permissible dust levels. The ICA deferred to the Board’s findings regarding the admission of evidence, including the testimony and reports of the industrial hygienist demonstrating compliance with MSHA permissible exposure levels, and find no error in that regard.

While the Board was not clearly wrong in admitting and considering evidence regarding the employers’ compliance with MSHA permissible exposure levels, the ICA found error in the Board of Review’s failure to consider all of the evidence in the records. The Court particularly faulted the Board of Review for its one sentence finding that summarily ruled in favor of the employers based on the evidence of exposure levels, offering no analysis of the evidence presented by either petitioner. While certainly compelling, the evidence related to the testing of the exposure levels at the employers’ facilities “was but one piece of the evidence presented to the Board for consideration and was not alone dispositive of petitioners’ claims[ ]” and the Board of Review “made no credibility determinations and offered no analysis of Mr. Boyce’s testimony regarding his exposure to occupational dust on a daily basis, or Mr. Sargent’s testimony that the sampling levels were not indicative of the typical work conditions.” The ICA remanded the case to the Board of Review for an analysis of all the evidence submitted in each of these claims to substantiate its findings.

Moore v. United Coal Company, LLC,  No. 25-ICA-137, 2025 WL 2781461 (W. Va. Ct. App. September 30, 2025) (memorandum decision)

In Moore, the Intermediate Court of Appeals affirmed the March 7, 2025, Board of Review order that affirmed the claim administrator’s February 26, 2024, claim rejection order. Claimant filed a CTS claim application based on his work in the underground coal mine.

The Board concluded that Mr. Moore did not establish by a preponderance of the evidence that he developed bilateral CTS in the course of and resulting from his employment with United. The Board found that Dr. Nabet’s report, which attributed Mr. Moore’s CTS to diabetes, was persuasive. The Board weighed the factors set forth in West Virginia Code § 23-4-1(f) and found that considering the ten years between Mr. Moore’s last date of employment with United and his diagnosis of CTS, his worsening diabetes, and Dr. Nabet’s report which attributed Mr. Moore’s CTS to his diabetes, the record does not establish that there is a direct causal connection between Mr. Moore’s employment with United and his CTS. Mr. Moore argues that the Board failed to properly consider his testimony and statements to Dr. Kominsky that he developed symptoms during his last two or three years of employment and that Dr. Nabet erroneously found that the symptoms developed along with the diabetes. However, we note that the Board pointed out that Mr. Moore’s symptoms progressed over ten years following the date he was last exposed to the hazard of CTS.

Although Mr. Moore argues that the Board erred in disregarding Dr. Kominsky’s report, the Board specifically found that Dr. Kominsky did not consider Mr. Moore’s diabetes. On the other hand, the Board found that Dr. Nabet’s report addresses the significance of Mr. Moore’s diabetes as documented in the medical records and is more complete in addressing compensability. The ICA deferred to the Board’s credibility determinations and weighing of the evidence.

The ICA found that the Board of Review was not clearly wrong to find that Dr. Nabet’s medical opinion was more credible than Dr. Kominsky’s because he considered Claimant's diabetes condition in the compensability analysis of the CTS diagnosis.

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

By: Kisa P. Sthankiya

In Panda Express, Inc. v. Illinois Workers’ Compensation Commission, 2025 IL App (4^th)  240771WC-U, the Workers’ Compensation Division of the Illinois Appellate Court reversed the decision of the Circuit Court of Boone County and reinstated the decision of the Commission. 

The claimant on September 25, 2018 was training new workers on how to properly transfer hot oil from the fryer to the disposal area.  The hot oil spilled onto the claimant’s feet, primarily onto his left foot and ankle.  It also splashed onto his right foot. 

The claimant was treated for his burns which were assessed to be at the third degree.  The claimant was hospitalized through October 9, 2018.  At discharge, his final diagnoses were a third degree burn of multiple sites of the left ankle and foot, second degree burn of multiple sites of the right ankle and foot and cellulitis of the left lower limb. 

The claimant treated through May 8, 2019 when he was released to return back to work full duty. 

At the time of trial, claimant was no longer working a second job transporting gutters to local building sites.  The claimant admitted that the right foot burns were less severe and had “kind of disappeared.”  However, the burns to his left foot were primarily on the top and side of the left foot.  The size of the skin graft was approximately 8” x 4” in size.  The skin graft area was markedly different from the surrounding skin with shiny appearance and no hair growth.  The right foot also exhibited circular burn areas on the top of the foot and ankle.  The burn areas on the feet and left leg were shown to the arbitrator and counsel.  Photographs were also submitted into evidence of the burns.

The arbitrator found that claimant had sustained disfiguring injuries to both of his feet and his left leg, and awarded 58 weeks of disfigurement benefits pursuant to Section 8(c) of the Act.   Specifically, the arbitrator awarded 10 weeks of disfigurement of the left leg, 3 weeks of disfigurement of the right foot and 45 weeks of disfigurement of the left foot.  The five factors under Section 8.1(b) were not addressed as the arbitrator noted he was not awarding any permanency under that provision.  The Commission affirmed and adopted the arbitrator’s decision in its entirety.

The employer appealed the Commission’s decision to the Circuit Court of Boone County who held that the claimant was not entitled to benefits for disfigurement under Section 8(c) of the Act because that section does not authorize benefits for disfiguring injuries to the feet.  The Circuit Court held that the foot was not covered under the list of body parts under Section 8(c).  Relying on the medical dictionary definition of leg, the Circuit Court could not conclude that the foot would be considered as part of the leg below the knee.  The Circuit Court instead awarded PPD benefits under Section 8(d)(2) of the Act. 

On appeal to the Appellate Court, the employer challenged the Commission award for benefits for disfigurement to the claimant’s feet under Section 8(c) because disfigurement of the foot was not listed as a compensable injury under the section.  The employer further argued that benefits under Section 8(d)(2) only applied if the claimant had sustained serious and permanent injury “not covered by either Section 8(c) or 8(e).”  The employer further argued that the claimant failed to present evidence of impairment of his foot which would have entitled him to benefits under Section 8(e). 

The key issue presented to the court was whether the foot is included within the definition of “leg below the knee” under Section 8(c) of the statute.  The court had to ascertain and give affect to the intent of the legislature.  The best indicator of the legislature’s intent was the plain language of the statute itself which would be given its plain and ordinary meaning. 

The court reviewed the definition of the leg under multiple sources including website citations to RxList, Health Line, Meriam Webster online dictionary, Britannica and Wikipedia.  They noted that all of these sources included the foot as part of the leg.  The court rejected the employer’s argument that the medical textbook definition should be followed which defines the leg as a part of the body extending from below the knee to only the ankle. The court noted that words in legislative enactment should be given their commonly understood meaning as used by the public as opposed to the meaning ascribed to the word by medical specialists.  The various sources that the court had cited explicitly distinguished the common understanding of the word from the specialized medical terminology and included the foot as part of the leg.  

The court addressed the employer’s argument that Section 8(e) of the Act showed that the legislature did not intend to define the foot as part of the leg because it listed them as separate body parts under that section.  The court distinguished 8(e) from 8(c) as 8(e) covered impairment and not disfigurement.  They noted that impairment differs according to the body part that is injured.  Whereas disfigurement could be equally harmful wherever it occurs. 

The court reversed the judgment of the Circuit of Boone County and reinstated the Commission’s decision awarding benefits for disfigurement of the left foot, right leg and left leg under Section 8(c) of the Act.   

By: Jigar S. Desai

In Ryba v. Illinois Workers’ Compensation Commission, 2025 IL App (2d) 230596WC-U, the Workers’ Compensation Commission Division of the Illinois Appellate Court for the Second District reversed the circuit court and reinstated the decision of the Commission.

Mary Catherine Ryba, the claimant, filed two applications for adjustment of claim in 2016 under the Workers’ Compensation Act, 820 ILCS 305/1, et seq., seeking benefits for work-related back injuries sustained while employed by Libertyville Manor Extended Care. 2025 IL App (2d) 230596WC-U at ¶4. The employer filed several motions for hearing in 2018 and 2019. After several procedural delays, the case was set for a hearing on February 18, 2020. Id. The claimant failed to appear for trial, and the arbitrator dismissed the case for want of prosecution.

On April 29, 2021 — 436 days later — the claimant moved to reinstate the case. 2025 IL App (2d) 230596WC-U at ¶5. The claimant argued she never received notice of the dismissal. Her counsel also cited a lack of receipt of a notice of case dismissal. Her counsel also claimed there were disruptions caused by the COVID-19 pandemic, as well as a death in the legal team’s family.

Despite the significant delay, the arbitrator reinstated the case. The arbitrator primarily based the decision to allow reinstatement on the claimant’s counsel’s claim that his office never received a written notice of the dismissal and the fact that the Commission was shut down during the period when the case was dismissed and the date a petition to reinstate was due. 2025 IL App (2d) 230596WC-U at ¶7. The arbitrator also found it significant that the Commission had suspended the mandatory trial “Red Line” from March 2020 to November 2021. Id. The arbitrator then proceeded to hear the case and awarded benefits to Ryba.

The Commission affirmed the arbitrator’s findings in full, including the decision to reinstate. The employer appealed to the circuit court.

The circuit court reversed. The circuit court found the arbitrator lacked jurisdiction to vacate the dismissal with prejudice because the statutory 60-day period to file for reinstatement had passed. 2025 IL App (2d) 230596WC-U at ¶8. The circuit court noted that the notice of dismissal was sent to all parties on February 19, 2020, and that caselaw confirms receipt of notice is established upon the date of mailing with confirmation of the sender. Id. See also Talmage v. Union Cent. Life Ins. Co., 315 Ill.App.623, 43 N.E.2d 575 (1st Dist. 1942); Tabor & Co. v. Gorenz, 43 Ill.App.3d 124, 356 N.E.2d 1150, 1 Ill.Dec. 868 (2d Dist. 1976).

The circuit court also found that even if the Commission had jurisdiction, the factual determination of the arbitrator did not support reinstatement, and found that the Commission failed to consider evidence against reinstatement.

On appeal to the appellate court, a number of issues were presented:

1. Did the arbitrator and the Commission have jurisdiction to reinstate a case dismissed for want of prosecution more than 60 days after the dismissal?

2. Did the Commission abuse its discretion in allowing reinstatement based on the claimant’s denial of notice and surrounding circumstances?

3. Were any of the employer’s additional challenges to the merits of the award preserved for appellate review?

The appellate court reversed the circuit court and reinstated the Commission’s decision in full.

The appellate court held that under Illinois law, a party’s denial of receipt of a dismissal notice creates an issue of fact. Therefore, the Commission was within its authority to assess credibility and determine that the 60-day reinstatement clock had not begun to run. 2025 IL App (2d) 230596WC-U at ¶8. The court cited Talmage, supra, in affirming that any determination of whether notice of dismissal was received is a factual issue and therefore the province of the Commission. The appellate court noted the claimant’s denial of receipt of notice rebutted the presumption of mail delivery of notice and created a question of fact for the Commission to decide. The appellate court therefore concluded that the arbitrator and Commission had jurisdiction.

The court found no abuse of discretion in the Commission’s decision to reinstate. The appellate court found the unique combination of the COVID-19 pandemic, procedural confusion regarding the “Red Line,” and personal hardship experienced by the claimant’s counsel supported the Commission’s conclusion that reinstatement was warranted despite the delay. 2025 IL App (2d) 230596WC-U at ¶15. The appellate court was unable to say the Commission’s decision was arbitrary, fanciful, or unreasonable. The court reiterated that it was not its role to reweigh evidence or substitute its judgment for that of the Commission.

Finally, the appellate court rejected the employer’s arguments that the appellate court review the award of the arbitrator. The employer did not raise these issues before the circuit court. The appellate court found the failure to raise issues as to the award resulted in their forfeiture, citing Fernandes v. Industrial Commission, 246 Ill.App.3d 261, 615 N.E.2d 1191, 1197, 186 Ill.Dec. 134 (4th Dist. 1993).

This case reaffirms the principle that when receipt of notice is denied, the presumption of delivery can be rebutted, and jurisdictional timelines under administrative rules may not bar relief if material factual disputes exist. The court also emphasized the broad discretion afforded to the Commission in managing procedural matters, especially under exceptional circumstances such as the COVID-19 pandemic.

By: Jigar S. Desai:

n Singleton v. Illinois Workers’ Compensation Commission, 2025 IL App (1st) 240120WC-U, the First District Appellate Court affirmed the dismissal of a workers’ compensation appeal for want of jurisdiction, emphasizing the strict, jurisdictional nature of statutory deadlines for filing a circuit court review of a Commission decision.

Rashun Singleton filed two applications for adjustment of a claim in 2016 and 2018, alleging a work-related injury from Singleton’s employment with Amita Health/Advent Health. The cases were consolidated. In July 2019, both claims were dismissed for want of prosecution. Singleton filed multiple motions to reinstate, all of which were denied by the arbitrator. The Commission affirmed the arbitrator’s denial on January 31, 2023. 2025 IL App (1st) 240120WC-U at ¶¶5 – 6.

That same day, the Illinois Workers’ Compensation Commission sent notice of its decision to both parties via its CompFile system. Singleton, representing herself, did not file a petition for judicial review in the circuit court until March 1, 2023 — well outside the 20-day statutory deadline.

Amita moved to dismiss the appeal for lack of subject-matter jurisdiction under §2-619(a)(1) of the Illinois Code of Civil Procedure, 735 ILCS 5/2-619(a)(1). The circuit court agreed and dismissed the petition. Singleton’s subsequent motions to vacate and reconsider were denied.

The issues before the appellate court included the following:

1. whether the 20-day period to seek judicial review under §19(f)(1) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., began on January 31, 2023, when electronic notice was sent via CompFile;

2. whether the method of notice (email) complied with the statutory requirement for notice; and

3. whether Singleton’s late filing could be excused on equitable grounds.

The appellate court affirmed the circuit court’s dismissal for lack of jurisdiction. The court held:

1. The 20-day filing deadline began when notice was sent via CompFile. Under §19(f)(1) of the Illinois Code of Civil Procedure, judicial review must be initiated within 20 days of receiving notice of the Commission’s decision — not the decision itself. Here, notice was deemed received on January 31, 2023, when the CompFile system generated and sent emails to the parties. The court took judicial notice of these public records.
   
   
2. Electronic notice is valid when the party subscribes to CompFile. The court rejected Singleton’s argument that §19(i) of the Workers’ Compensation Act required personal or mailed notice. By registering with CompFile and consenting to electronic service, Singleton agreed to receive notice via email. Under 50 Ill.Admin. Code §9015.50(c), such service is deemed complete upon transmission.
   
   
3. Late filing is jurisdictional and cannot be excused. The court reaffirmed that the statutory filing period is jurisdictional. Absent strict compliance, the circuit court lacks subject-matter jurisdiction. Singleton’s argument that the email may have gone to Singleton’s spam folder was irrelevant under existing caselaw. 2025 IL App (1st) 240120WC-U at ¶17.

The Singleton decision is a reminder that while the Illinois Workers’ Compensation Commission may exercise discretion in certain procedural matters, the statutory deadlines for initiating judicial review in circuit court are strictly jurisdictional. The appellate court reinforced the following:

1. Receipt of electronic notice via CompFile satisfies the statutory requirement for notice if the party has registered for the system.

2. The statutory 20-day window to seek circuit court review under 820 ILCS 305/19(f)(1) begins on the date notice was issued, not on the date of receipt of the decision itself or a party’s actual knowledge.

3. Jurisdiction cannot be conferred by equitable arguments, such as misunderstanding or inadvertent delay.

Comparison to Ryba: Different Rules at Different Levels

In May’s FLASHPOINTS, we analyzed the appellate court’s decision in Ryba v. Illinois Workers’ Compensation Commission, 2025 IL App (2d) 230596WC-U. In Ryba, the appellate court affirmed the Commission’s reinstatement of a claim when the motion to reinstate was filed well after the 60-day period provision of the Workers’ Compensation Act.

The Ryba and Singleton decisions present a clear contrast in how timing issues are treated, depending on whether the matter remains before the Commission or has moved into the judicial review phase.

In Ryba, the appellate court allowed reinstatement of a claim long after the 60-day reinstatement period had passed. The court emphasized that when factual disputes exist — such as denial of notice — the Commission retains discretion to resolve those facts and, when appropriate, toll deadlines. The decision acknowledged the Commission’s broader procedural discretion, particularly during unusual periods like the COVID-19 pandemic.

By contrast, Singleton confirms that once a case moves into the judicial review phase, the jurisdictional lines are strictly drawn. The 20-day filing period under §19(f)(1) of the Workers’ Compensation Act is not a discretionary deadline — it is a jurisdictional bar. Unlike in Ryba, factual disputes such as whether an email went to a spam folder are irrelevant if notice was properly issued and the statutory clock began.

The key distinction lies in statutory discretion vs. jurisdictional mandates:

1. The Commission has discretion to determine factual disputes regarding notice and may permit reinstatement based on equitable considerations (Ryba).

2. The circuit court’s jurisdiction under §19(f)(1) is strictly limited by statute, and equitable considerations cannot extend the deadline (Singleton).

Practitioners must understand the procedural posture of a workers’ compensation case and the implications it has on applicable deadlines. Before the Commission, factual disputes over notice and good cause may allow some leeway. But once a decision is final and the case moves into judicial review, strict compliance with statutory deadlines is essential. Electronic notice is deemed sufficient, and failure to act within 20 days will likely prove fatal to the appeal, as it did in Singleton.

By: Kisa P. Sthankiya

The Illinois Supreme Court issued in Bitner v. City of Pekin 2025 IL 131039  on September 18, 2025 finding that the Illinois Public Employee Disability Act (PEDA), does not prohibit a city from withholding employment taxes from PEDA benefits.

The plaintiffs in the case were both police officers working for the City of Pekin and injured in the line of duty in separate accidents. Both employees received PEDA benefits pursuant to Section 1(b) of PEDA.  Section 1(b) provides:

Whenever an eligible employee suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury, but not longer than one year in relation to the same injury. (5 ILCS 345/1(b) (West 2018)

During the time that the plaintiffs received PEDA benefits, the City continued to pay the plaintiffs in the same manner as they were paid prior to their injury and withheld employment taxes (Federal, State, Social Security and Medicare).  The plaintiffs filed a suit in circuit court of Tazewell County alleging that by withholding the employment taxes, the City violated the Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 2018).

Cross Motions for Summary Judgment were filed. The circuit court ruled in favor the plaintiff and entered a judgment to recoup the withheld taxes from the City. The ruling was appealed to the appellate court. The appellate court determined that based on the plain language of Section 1(b) did not prohibit the City from withholding unemployment taxes. They did not reach a conclusion on whether the only remedy was to seek a refund of the improperly withheld taxes from the IRS. The appellate court reversed and remanded the case.

The Supreme Court allowed leave to appeal. There were multiple issues decided at the circuit court and appellate level. However, the only issue before the Illinois Supreme Court in the case was whether the Appellate Court erred in its interpretation of Section 1(b).

Relying on language from prior appellate decisions, including Gibbs v. Madison County Sheriff’s Department, 326 Ill. App. 3d 473 (2001), the plaintiffs argued that section 1(b) provides for the “continuation of full pay” and that “full pay” should be interpreted to mean gross pay without employment tax deductions. The Court noted, however, that the phrase “full pay” appears nowhere in Section 1(b). The proper starting point for statutory interpretation, it emphasized, is the plain language of the statute itself. Section 1(b) expressly provides that an eligible employee, “shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation.” 5 ILCS 345/1(b).

The Court concluded that the phrase “on the same basis” was unambiguous and required disability payments be processed in the same manner as the employee’s pre-injury wages. Thus, if the employer routinely withheld employment taxes before the injury, those same deductions must continue post-injury in order to comply with section 1(b).

The statutory language in section 1(b) also lists specific items that cannot be deducted—sick leave, compensatory time, and vacation credits—but does not mention  employment taxes. Applying the interpretive maxim expressio unius est exclusio alterius, the Court held that the legislature’s express inclusion of certain prohibited deductions impliedly excludes others. Accordingly, the omission of employment tax withholding from the list indicates that such withholdings are permissible.

Plaintiffs argued that this reading produced an absurd or unjust result because, in their view, PEDA benefits are exempt from federal income tax, and therefore the withholding of employment taxes unlawfully reduces the benefit. The Court was unpersuaded by their argument. It observed that plaintiffs had provided no authority—no IRS ruling, federal statute, or regulation—establishing that section 1(b) payments are tax-exempt. Even if such payments were ultimately non-taxable, the Court reasoned, any excess withholding would not deprive the employee of funds owed under the Act. Rather, the proper remedy would be for the employee to claim a tax refund from the IRS or adjust his W-4 withholding status.

Additionally, the Court underscored the administrative practicality of its interpretation. They noted that public employers often face operational challenges in administering pay for police officers and firefighters who move in and out of PEDA status, sometimes for short periods. Requiring employers to continually assess taxability and alter withholding practices would create unnecessary complexity and potential compliance issues. Section 1(b), by directing that pay continue “on the same basis” as before the injury, actually simplifies administration and ensures uniformity. The Court noted that other jurisdictions, such as Massachusetts and North Carolina, have adopted similar frameworks requiring payment of “in the same manner” as regular compensation for disability payments.

The Court held that nothing in section 1(b) prohibits public employers from withholding employment taxes from disability payments. The employer, therefore, did not violate the statute by continuing to process payroll in the same manner as pre-injury compensation. The appellate court’s judgment reversing the circuit court was affirmed.

This decision reinforces that PEDA does not create an enhanced or tax-exempt benefit beyond continuation of ordinary salary. Payments should be issued from the regular payroll system and subject to the same withholdings as the employee’s pre-injury compensation.

The decision also reiterates that questions regarding whether disability payments are taxable, or whether withholdings were appropriate, are matters between the employee and the Internal Revenue Service. Per the decision, ff an employee believes the payments are exempt from taxation, the appropriate recourse is to adjust tax withholding by submitting a new W-4 form or to seek a refund directly from the IRS. This clarification protects municipalities from unwarranted demands for reimbursement and reinforces that PEDA’s purpose is to ensure income continuity, not to provide a tax-exempt benefit.

By: Kisa P. Sthankiya

n Card Dynamix, LLC v. Illinois Workers’ Compensation Commission, 2024 IL App (3d) 240319WC-U, the Workers’ Compensation Commission Division of the Illinois Appellate Court addressed a significant question concerning the scope and applicability of §12 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., in the context of post-award proceedings. Specifically, the court was asked to determine whether an employer retains the statutory right to compel an independent medical examination (IME) after an award granting the claimant ongoing prospective medical rights has been entered, particularly when the claimant seeks additional medical expenses that may not fall squarely within the original award.

The claimant, a 56-year-old quality sample inspector for a plastic manufacturing company, suffered a significant lower back injury in 2013 while pushing a heavily loaded cart. MRI imaging revealed a lumbar disc bulge, and subsequent treatment included a laminectomy and spinal fusion at L5-S1. The treating orthopedic surgeon, Dr. Mark Sokolowski, oversaw the claimaint’s care over several years, prescribing pain medications and recommending follow-up MRIs.

After conservative treatments proved ineffective, the claimant underwent surgery and continued to require ongoing care and prescriptions. In 2017, an arbitrator awarded her 35 percent permanent partial disability under §8(d)(2) of the Act, ordered the employer to cover prospective medical care under §8(a), and left medical rights “open.” 2024 IL App (3d) 240319WC-U at ¶3.

After the arbitration award, the claimant returned to Dr. Sokolowski for at least eight follow-up visits between December 2017 and February 2021, during which he continued prescribing pain medication, including hydrocodone. On August 10, 2018, due to the claimant’s persistent lumbar pain and radiculopathy, Dr. Sokolowski referred her to Dr. Kalina, a pain management specialist, for long-term pain management. The claimant began treatment with Dr. Kalina on August 20, 2018, and continued through at least June 2021. Dr. Kalina’s care included addressing conditions such as neck pain and the aftermath of a stroke — ailments not clearly addressed by the original award or directly linked to the claimant’s work injury. All related medical bills were submitted to Travelers Insurance Company.

Travelers initiated a utilization review to assess whether the pain management medications prescribed by Dr. Sokolowski after the arbitration were appropriate and consistent with evidence-based standards. However, Travelers failed to provide the reviewing doctors with complete information, including the arbitration award granting the claimant prospective medical care. As a result, some reviewers denied medications that Dr. Sokolowski had already prescribed and that the arbitrator had approved. Despite Dr. Sokolowski’s repeated requests for a peer-to-peer review, a right guaranteed under the Act, neither Travelers nor the reviewing physician responded. Additionally, Travelers failed to pay for a prescribed drug even after approval by its own reviewing physician. Drs. Sokolowski and Kalina also documented the claimant’s ongoing need for a new MRI of her lumbar fusion site, which Travelers did not authorize. The MRI was eventually performed over four years after it was first recommended, paid for by the claimant’s group insurance carrier in January 2021.

The employer’s insurer, Travelers, declined to pay for these treatments without first conducting an IME to determine causation and medical necessity. The claimant refused to submit to the IME, contending that §12 does not authorize an employer to demand an IME in a post-award enforcement proceeding.

The claimant filed a petition under §8(a) to compel payment of medical expenses and sought penalties and attorneys’ fees under §§19(k) and 16, respectively. The Commission partially granted the petition, ordering Travelers to pay for follow-ups and prescriptions by Dr. Sokolowski, as well as the MRI. The Commission focused on other language in the arbitrator’s decision, stating that the employer was liable for prospective medical treatment and expenses, “specifically, continuing follow-up visits with Dr. Sokolowski, a new lumbar MRI (but only if Dr. Sokolowski continues to order one) and continuing prescription medication, as required.” [Emphasis added by the court.] 2024 IL App (3d) 240319WC-U at ¶30. The Commission found that this statement limited the prospective medical care award to those particular treatments.

However, the Commission narrowly construed the scope of the original arbitrator’s award, concluding that it did not encompass Dr. Kalina’s treatments and found that Travelers had a right to conduct another IME under §12. Penalties and fees were awarded.

A partial dissent by Commissioner Doerries disagreed with the majority’s penalty calculation, arguing it should be based on the fee schedule, not the billed amounts.

The matter was appealed to the Will County Circuit Court, which reversed the Commission in part, finding that Travelers had no valid basis for denying treatment and expressing frustration over systemic barriers faced by claimants seeking enforcement of open medical rights. The court remanded for a recalculation of penalties and fees based on the full amount of unpaid medical bills.

On remand, the Commission complied with the circuit court’s order and issued a new decision. The employer’s subsequent appeal to the circuit court was rejected, and the Commission’s award was affirmed.

The appellate court rejected the claimant’s argument that the employer was not entitled to an IME post-arbitration award. Applying a de novo standard of review, it emphasized that the plain language of the §12 permits an employer to request an IME at “any time” to determine both “the nature, extent and probable duration of the injury” and “the amount of compensation which may be due the employee from time to time.” 2024 IL App (3d) 240319WC-U at ¶¶41 – 42. The court reasoned that the phrase “from time to time” reflects the legislature’s intent to extend the applicability of §12 beyond the initial adjudication of benefits, thereby encompassing ongoing disputes concerning medical treatment sought pursuant to an open medical award. 2024 IL App (3d) 240319WC-U at ¶42.

The court further noted that prospective medical expenses awarded under §8(a) may properly be viewed as a form of “compensation” within the meaning of §12 when they pertain to the treatment of disabling conditions causally connected to the work-related injury. Accordingly, the court concluded that Travelers was entitled to request an IME in this post-award context to evaluate whether the care provided by Dr. Kalina was necessary to cure or relieve the effects of the compensable injury and whether such care was within the scope of the prior award.

In reaching this conclusion, the court distinguished precedent that limited post-award IME rights to scenarios involving a potential change in disability status. It observed that while cases such as King v. Industrial Commission, 189 Ill.2d 167, 724 N.E.2d 896, 244 Ill.Dec. 8 (2000), addressed such circumstances, they nevertheless affirmed the broader proposition that the right to an IME does not terminate upon entry of a final award. The court thus rejected the claimant’s argument that §12 is inapplicable to proceedings aimed at enforcing prospective medical rights.

The claimant also contended that Travelers forfeited its right to an IME by failing to comply with §12’s procedural prerequisites, including reimbursing travel expenses and lost wages. The appellate court declined to reach the merits of this contention, finding that the claimant had forfeited the argument by failing to raise it before the Commission. In any event, the court deemed the argument unpersuasive, noting that even assuming Travelers had initially failed to meet its statutory obligations, such failure would not irrevocably bar it from obtaining an IME at a later time upon full compliance.

Turning to the issue of penalties under §19(k), the court held that Travelers’ refusal to pay for the disputed treatment rendered by Dr. Kalina was not unreasonable or vexatious. Given that some of the treatment involved conditions not clearly within the scope of the arbitration award or demonstrably related to the original injury, the insurer had a good-faith basis for withholding payment pending the IME.

However, the court agreed with the Commission that Travelers’ failure to pay for certain undisputed medical expenses — specifically, follow-up visits with Dr. Sokolowski, the treating orthopedic surgeon; a lumbar MRI; and continued prescriptions — was unreasonable and without justification. These services were plainly included within the scope of the arbitration award. As a result, the court affirmed the imposition of penalties and attorneys’ fees pursuant to §19(k) with respect to those expenses.

Finally, the court addressed the methodology for calculating penalties. While the Commission initially calculated penalties based on the full amount of the medical providers’ charges, the court held that the statutory fee schedule established under §8.2 governs the appropriate penalty base. The court found that Travelers preserved its right to have the penalties calculated using the fee schedule by introducing the relevant evidence into the record, and that it was not required to affirmatively request such calculation during the administrative proceedings.

The court reversed the circuit court and remanded the case to the Commission with instructions to assess penalties against Travelers based on the fee schedule outlined in §8.2 of the Act. Additionally, the Commission was directed to determine whether to award the claimant’s attorneys’ fees and costs against Travelers, as permitted by §16 of the Act. The court reinstated the Commission’s initial decision in all other respects, including its finding that Travelers was entitled to an IME and its penalty award limited to Travelers’ refusal to pay only for Dr. Sokolowski’s treatments, the prescribed medications, and the lumbar MRI.

By: Kisa P. Sthaniya

On January 24, 2025, the Illinois Supreme Court issued its long-awaited decision in Martin v. Goodrich Corp., 2025 IL 130509, upholding the constitutionality of a 2019 amendment to the Illinois Workers’ Occupational Diseases Act (OD Act), 820 ILCS 310/1, et seq. This case required the Illinois Supreme Court to construe §§1(f) and 1.1 of the OD Act in the context of a wrongful-death and survival action. The court was called on to answer three key questions:

1. whether §1(f) imposes a statute of repose, thereby falling within the civil action exception created by §1.1;
2. if so, whether §1.1 applies retroactively or prospectively; and
3. whether applying §1.1 to pre-enactment exposures would violate the Illinois Constitution’s due-process protections.

Factual and Procedural Background

The claimant, Rodney Martin, worked for BF Goodrich from 1966 to 2012. During his employment, he was exposed to vinyl chloride monomer and related chemical products — compounds known to cause sarcoma of the liver. His exposure to vinyl chloride ended in 1974. Decades later, in 2019, he was diagnosed with angiosarcoma of the liver and died in July 2020. His widow, Candice Martin, filed a civil suit in November 2021 under the Wrongful Death Act, 740 ILCS 180/0.01, et seq., and the survival statute, 755 ILCS 5/27-6, alleging that her husband’s occupational exposure caused his illness and death.

She named Goodrich and its successor, PolyOne, as defendants, seeking to proceed outside the workers’ compensation system by invoking §1.1 of the OD Act, 820 ILCS 310/1.1. That provision, added in 2019, allows a plaintiff to pursue a civil action if compensation is barred under the OD Act by the statute of repose.

The defendants moved to dismiss. PolyOne asserted a lack of personal jurisdiction. Goodrich argued that §1.1 was inapplicable because §1(f) constituted a statute of repose and that, in any event, the new provision could not retroactively revive a time-barred claim without violating constitutional due-process rights.

Workers’ Occupational Diseases Act and the Exclusivity Doctrine

The court reiterated that the OD Act was enacted to provide no-fault compensation for occupational diseases that are disabling as a result of workplace exposures (820 ILCS 310/1(d)). Like the Workers’ Compensation Act, the OD Act was intended to replace common-law remedies with a more efficient, administrative process. The exclusivity provisions under §5(a) of the OD Act bar civil actions for work-related injuries in most circumstances.

However, this exclusivity is not absolute. The Martin court noted that employees can pursue civil claims when their condition (1) was not accidental, (2) did not arise from the employment, (3) was not received during the course of employment, or (4) as in Martin, supra, is not compensable under the OD Act. 2025 IL 130509 at ¶20. This exception was squarely addressed in Folta v. Ferro Engineering, 2015 IL 118070, 43 N.E.3d 108, 397 Ill.Dec. 781, in which the Supreme Court upheld the exclusivity bar despite the claim being time-barred under the OD Act, concluding that the absence of a remedy due to the statute of repose did not render the injury noncompensable.

Folta led to widespread criticism due to its harsh result: the employee was left without any remedy. In response, the legislature enacted §1.1 in 2019, which explicitly allows civil actions when claims are barred under the OD Act by a statute of repose.

Section 1(f) is a Statute of Repose

The first issue was whether §1(f), which bars compensation unless disablement occurs within a specified period after last exposure, constitutes a statute of repose. 820 ILCS 301/1(f). The court held that it does. Like §6(c) — previously identified in Folta as a statute of repose — §1(f) operates to extinguish claims after a defined period, regardless of when the injury manifests or whether it has yet accrued.

The Martin court emphasized that both §§1(f) and 6(c) are conditions precedent to recovery. Compliance with both is necessary for a valid claim under the OD Act. Failure to meet these time limitations results not just in a procedural bar but a substantive extinguishment of the right to compensation. Thus, the protections of the OD Act, including the exclusivity bar, are no longer available to employers when §1.1 applies.

Section 1.1 Applies Prospectively

The court next turned to the temporal reach of 820 ILCS 301/1.1. Because the statute does not expressly provide whether it is retroactive or prospective, the court applied §4 of the Statute on Statutes (5 ILCS 70/4), which states that substantive amendments apply prospectively unless otherwise provided.

Section 1.1 was deemed substantive, as it created a new right of action outside the administrative system for certain claimants barred from relief under the OD Act. As such, it may not be applied retroactively to revive previously extinguished claims. However, when an occupational disease was discovered after the statute’s enactment, the court concluded that civil remedy under §1.1 is available.

Section 1.1 Does Not Violate Due Process

The final issue was whether applying 820 ILCS 301/1.1 to exposures that occurred decades earlier would violate employers’ due-process rights under the Illinois Constitution. The court rejected this argument, reasoning that employers do not have a vested right in the exclusivity defense until the cause of action accrues. This occurs when all elements of the tort claim are present — namely, the diagnosis or discovery of injury.

In this case, the court noted that the injury (angiosarcoma) was discovered in 2019, and the civil complaint was filed in 2021 — after the enactment of §1.1. Therefore, no vested right was disturbed. The exclusivity defense had not accrued before the legislative change, and the employer’s reliance on repose or exclusivity defenses did not carry constitutional weight under these facts.

This decision reverses the harsh outcomes resulting from Folta, supra, and signals the court’s continued deference to legislative corrections in the complex field of occupational diseases law. Practitioners should carefully evaluate exposure timelines, diagnosis dates, and procedural posture when assessing case viability, particularly in toxic exposure claims arising outside the traditional temporal scope of the Workers’ Compensation Act or the OD Act.

EMPLOYERS/CARRIERS/TPAs WITH THIRD PARTY SUBROGATION CLAIMS IN KANSAS – PAY ATTENTION TO HOW THE THIRD PARTY CLAIM SETTLEMENT OR RECOVERY IS DOCUMENTED AND INTERVIENE IN THE THIRD PARTY ACTION WHERE NECESSARY TO DOCUMENT THAT DAMAGES RECOVERED IN THE THIRD PARTY CLAIM ACTION ARE DUPLICITOUS WITH THE WORKERS COMPENSATION BENEFITS RECEIVED, AND SEEK LEGAL ADVICE BEFORE CASHING THE SUBROGATION RECOVERY CHECK.

Case Caption: Rumbaugh v. DirecTV, 65 Kan. App. 2d 266, 564 P.3d 17 (Kan. Ct. App. 2025)

Case Facts:

Justin Rumbaugh sustained a compensable low back injury on the job in 2014 and received workers compensation benefits.

In 2016, he developed cauda equina syndrome (compression of nerve roots at the bottom of the spinal cord).  He presented to an emergency room, was misdiagnosed, experienced a deterioration of symptoms including urinary complications, obtained treatment, but experienced continuing urological complications.

In 2018, he settled out the disability compensation portion of his workers compensation claim against DirecTV, but he left open his right to future medical paid for by workers compensation.

In 2020, he settled his third-party malpractice claim of “misdiagnosis” of the cauda equina syndrome for a significant amount of money. Kansas workers compensation law entitles the employer to stand first in line to recover the “duplicitous” workers compensation benefits paid up to the date of the third-party recovery (the lien). Kansas law also allows the employer a “credit” against future workers compensation benefits sought for the work injury, up to the dollar amount of the third-party recovery, to the extent they are “duplicitous.”

After the third-party settlement, the injured worker’s attorney mailed a check from third party recovery funds to the employer’s third-party administrator arguing the check amount satisfied any lien against future medical benefits under the Kansas work comp act. The third-party administrator accepted the check and cashed it, not contesting or clarifying the “accord and satisfaction” type language written on the check.

In 2021, because his work comp future medical rights remained open, Rumbaugh sought post-award medical treatment seeking payment of medical bills incurred after the 2020 third party settlement.

The workers compensation administrative law judge and Appeals Board denied claimant’s request, ruling DirecTV held a workers compensation subrogation credit towards future medical expenses to the extent of Rumbaugh’s entire medical malpractice recovery amount, so the employer was not required by the work comp judge to pay any medical bills until Rumbaugh exhausted the entire third-party recovery amount.

The Kansas Court of Appeals Decision:

First, as to the Appeals Board denial of Rumbaugh’s claim that the employer entitlement to a “credit” against additional future medical expense after the third-party recovery, the Court of Appeals held that Rumbaugh’s “accord and satisfaction” argument that the adjuster cashed the check as written and thereby waived entitlement to future credit against post third-party settlement medical expenses incurred, fails.  Note this was a decision on the technicality that Rumbaugh’s attorney failed to properly reserve that argument on appeal. In short, the “accord and satisfaction” argument by claimant’s attorney failed, but the real question of whether the language on the check was sufficient to defeat the employer’s future subrogation credit was not addressed by the Court of Appeals.

Second, the Court of Appeals reversed the Appeals Board ruling for the employer but remanded the case back to the Appeals Board to decide whether the third-party recovery was “duplicitous” with the workers compensation claim benefits claimant was awarded in the compensation claim. What that question really comes down to is whether claimant’s original low back injury settlement included entitlement to future medical for the urinary tract problems resulting from the medical negligence because they are “duplicitous.”  If the Appeals Board finds that the that future medical benefit entitlements from the original work injury include treatment for the urinary tract problems arising from the cauda equina syndrome, then the full third-party recovery amount by claimant would be subject to the subrogation “credit” and the employer would not owe for the medical treatment cost reimbursement claimant was making in his “post-award” action, because the ongoing cauda equina syndrome treatment was a direct, natural and probable consequence of the original low back work injury.

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

► Carriers and Third-Party Administrators should always consult defense counsel before cashing any third-party subrogation lien recovery check to ensure it has no language directly or indirectly causing the waiver of the employer/carrier’s additional and future subrogation “credit” rights as arising out of the third-party recovery amount.

► Carriers and Third-Party Administrators should not ignore third-party suits; rather, they should maintain some involvement to ensure third-party settlement or recovery proceeds are not structured in a way as to deny the employer a subrogation lien or credit by claimant attorney cleverly structuring the tort suit settlement characterization of damages a “non-duplicitous” of workers compensation benefits.  The employer position should be in the tort case that the tort damages are “duplicitous” of the workers compensation benefits received by the injured workers, to the extent possible to maximize the subrogation recovery.

►This decision debunks a claimant attorney’s arguments that only the district court in the tort suit action has jurisdiction to determine the “duplication” of benefits issue. In the past, some claimant attorneys have alleged that only the tort suit district court has jurisdiction to make the duplication of benefits determination. Here the Kansas Court of Appeals remanded to the Workers Compensation Appeals Board (the State work comp agency) to make the determination of what damages are duplicitous and what were not.

 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.

Maine’s workers’ compensation stakeholders will be gathering at Sundy River, in Bethel, Maine, on October 8 and 9, 2025, to hear from industry experts on topics of critical concern to the various people who keep the system runnning.  Seminar topics include MSA’s in a post-Chevron world; Rethinking Physical Therapy in Complex Workers’ Compensation Cases; Navigating Claims for Psychological Injuries;  Collective Bargaining Agreements and Workers’ Compensation; The Interplay of ADA, FMLA, PFML and WC; and Is Carpal Tunnel Work Related Because I Said  So.

This gathering of lawyers, adjusters, vendors and Board employees is important as it allows the various stakeholders to mingle and talk about topics that are important to discuss in the ever-changing landscape that is workers’ compensation in Maine. Registration is open until Sunday, October 5, so if you have not yet registered, there is still time. Stay tuned for a recap following the event.