Success Stories
Massachusetts: Multi-Insurer case:
This was a multi-insurer case involving a 57 year old career roofer. The employee claimed cumulative injuries to his bilateral wrists, shoulders, ankles, and knees. He was seeking total joint replacement surgeries to several body parts. Our client was last on the risk under a CCIP policy wherein the employee only worked for 15 days on the CCIP jobsite. Our client was ordered to pay at conference. At hearing we proved that there was no change in the employee’s physical condition at any time during the 15 days on the CCIP jobsite. The judge found the first on the risk liable and ordered them to pay permanent and total disability and medical benefits. The judge found that the employee’s work after he left his first employer “was not a contributing cause of his incapacity even to the slightest extent.” The judge also ordered the first on the risk to repay our client for all medical and indemnity benefits paid pursuant to the conference order.
(Nick Chrissis, Massachusetts DIA)
Connecticut: Concurrent Employment
TKCK represented a convenience store in Connecticut. The claimant alleged an injury to her right ankle and was paid TTD and TPD benefits at her base compensation rate.
She later disclosed that she had concurrent employment. Her concurrent employer produced evidence showing that she missed no time from working that job and that she continued to receive her weekly salary with the appropriate deductions for taxes, social security benefits and Medicare. The Respondents sought to terminate benefits as the claimant is not entitled to TTD while she is working. They also sought a reduction in the weekly TPD paid as she was not eligible for benefits at her base compensation rate while she is working.
After a formal hearing on the issue, the trial Judge reviewed the evidence and found that the claimant was not entitled to TTD benefits, nor was she entitled to TPD benefits at her base compensation rate. He issued an order for repayment in the full amount claimed by the Respondents (nearly $27,000) in monthly installments.
The claimant appealed the decision to the Compensation Review Board. She argued that although she continued to be paid by the concurrent employer, her family (not she) performed the work. Since she was not physically working, she asserted that she was entitled to TTD and TPD.
The CRB:
- dismissed the appeal as it was untimely filed by the claimant
- found that the trial judge’s decision was based on the facts and evidence presented by the Respondents
- affirmed the trial judge’s decision that the claimant was not entitled to the benefits and that they must be repaid
(Lynn Raccio, Connecticut WCC/CRB)
Massachusetts: Physical and Emotional Injury
The employee alleged that while working as a housekeeper for a Boston hospital that she was inadvertently bumped in the abdomen by a cart being pushed by her coworker. At the time, the employee was 15 weeks pregnant. The employee claimed that after the incident, she developed abdominal pain. She was assessed at the hospital where only mild tenderness was indicated. The employee took some time off of work over the start of the New Year. She then returned to work for a few days before she began to experience symptoms of a miscarriage about a week after being struck by the cart. A few days later, the employee unfortunately did suffer a miscarriage. The employee alleged emotional distress as the result of this incident which she claimed was related to the work injury involving the abdomen strike. She sought behavioral health treatment following the miscarriage.
Our experts were able to determine that the miscarriage, which occurred well after the initial cart strike, was unrelated to the alleged work injury which was diagnosed by them as a case of minor abdominal trauma. In addition, it was opined that she eventually completed treatment for her mental health and that she no longer had any psychiatric conditions which prevented her from working. The employee ultimately did return to work for a new employer.
In his Hearing Decision, the Judge adopted the opinion of the Insurer’s experts and Denied the employee’s claim. He detailed, “Where ‘a case concerns psychological sequelae of a physical injury, the causal relationship of the psychological injury rises and falls on the causal relationship of the physical injuries the employee suffered as a result of the work accident.’ Tonya Pickett v. Boston Software Co. Board No. 001511-12 (2018), citing Praetz v. Factory Mut. Eng’g & Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (993). Based on the adopted medical opinions discuss, supra, I find no causal relationship between the [redacted date of injury], incident at work and the Employee’s subsequent miscarriage on [redacted date], and the resulting psychological injury which flowed from the unfortunate events surrounding the Employee’s miscarriage. I have adopted the opinion of Dr. [redacted defense expert] who finds no causal relationship between the [redacted date of injury], incident at work and the Employee’s subsequent miscarriage on [redacted date]. The Insurer has raised Sec. 1(7A) as a defense to the claim. Because I have found that the incident at work did not cause the miscarriage and any psychiatric diagnosis which flowed, there is no need to address this defense. However, I have adopted the opinion of Dr. [redacted defense expert], who finds that the Employee’s psychiatric diagnosis of MDD pre-dated the [redacted date of injury], work incident, and combined with her [redacted date] miscarriage to cause any disability, which is unrelated to the [redacted date of injury], work incident.”
(John Keefe, Massachusetts DIA)
New Hampshire: Working from home when injured
The injury occurred in 2023, and the employee was working as a site engineer from home on defense contracts.
On the DOI, the employee arose to use his bathroom, ascended wooden steps and slipped and fell on a wooden landing shattering his left elbow. This injury occurred in his home.
The key issue in the case was causal relationship of injury to employment under RSA 281-A: 2 XI, XIII.
The employee alleged that he was working at the time of his injury and that his injury arose out of and in the course of his employment.
At the time of the hearing, we dissected the factual foundation upon which the employee relied to show causal relationship of an injury at home to his workplace activities.
We elicited facts from the employee under cross-examination that showed that the employer had no control over the work conditions and the employee’s home.
There were no modifications made to his home at the request or direction of the employer. The work set up at home was not the result of the employer requirements.
The employer did not construct anything related to the employees work activities at the employee’s home that created a risk of employment for the employee.
Under New Hampshire case law In Re Margeson, in order for a case to be compensable there must be a risk associated with employment, something endemic to employment and not a personal or neutral risk. The only activity or risk created for this employee was use of a computer to do his job.
Our argument was that all the conditions leading up to the incident including the fact that the employee was in his stocking feet at the time of the incident, were the result of neutral personal risks and nothing required or endemic to his employment for the insured.
By building the foundation through testimony and documentary evidence, the trial factfinder was left with nothing but a legal requirement to find that the incident was not compensable and that the incident did not arise out of and in the course of employment required under RSA 281-A: 2, XI, XIII.
This was a very significant victory as the employee was a high earner and had extensive surgical treatment which would help push the value of the case well into seven figures.
(Richard Florino, New Hampshire Department of Labor)
Second Injury Fund recovery: By the Numbers:
In 2023, TKCK recovered over $4 million dollars in initial recoveries. We have recovered over $50 million since 2010!