TKCK’s New Hampshire WC practice group received two big wins recently!
The first case involved the New Hampshire Compensation Appeals Board with respect to the Going and Coming Rule. Attorneys Richard Florino and Matthew Fausch won the case with a complete denial from the CAB. The employee attempted to appeal to the NH Supreme Court but upon motion for summary affirmance filed by Attorney Robert Martin, the Court rejected the appeal and upheld the denial.
The employee (an ambulance driver) was on his way in his personal vehicle to report to work to cover an extra shift when he was involved in a very serious single car accident which resulted in severe injuries. The employee argued two distinct theories to make this a compensable claim New Hampshire Worker’s Compensation RSA §281-A:2, XI, XIII (Causal Relationship of Injury to Employment).
His first theory was that he was on a “special errand” on the morning of the alleged incident, so as to negate the Going and Coming Rule. He based this argument that he was helping the employer by covering this extra shift.
The second theory was that fatigue from working long hours – he claimed he worked 84 hours the week prior, which led to extreme fatigue, causing him to fall asleep at the wheel and therefore the injury arose out of and in the course of his employment.
Evidence offered at the CAB included the convincing testimony of three employer witnesses who detailed the employer’s shift practices and the voluntary nature of employees’ picking up extra shifts. The CAB denied the employee’s claim for compensation. The CAB discussed the distinction between a true “special errand” which is outside an employee’s normal job duties. In finding that this case was not a special errand, the CAB reasoned that there was no compulsion to volunteer for extra shifts, that it was a normal occurrence for employees to pick up extra shifts, and that the financial incentives offered to pick up these extra shifts were a standard business policy.
The employee filed a Rule 10 Petition seeking an appeal to the New Hampshire Supreme Court. In his Petition, he raised four issues with the CAB decision: (1) that CAB failed to consider the mutual benefit doctrine; (2) that CAB erred in finding that the special errand exception did not apply; (3) that CAB erred in finding that the employee volunteered to cover the shift; and (4) that CAB erred in citing to the DOL hearing transcript and deposition transcripts. In response, TKCK filed a Motion for Summary Affirmance refuting the four issues raised by the employee, and urging the Supreme Court to deny the employee’s petition. After consideration of the employee’s Rule 10 Petition and the insurer’s Motion for Summary Affirmance, the Supreme Court declined to accept the employee’s appeal, thereby upholding the denial of the claim.
This decision is a significant ruling with respect to the Going and Coming Rule and we understood that many ambulance companies and like employers were concerned that an adverse decision would impact their ability to do business in the State of New Hampshire given the potential exposure and effect on their policies and methods of doing business.
The second case was handled by Attorney Richard Florino at the hearing level before the New Hampshire Department of Labor.
The employee, a branch manager of an insurance company claims department, alleged that stresses of his work (including duty of dismissing employees), caused him to have a hemorrhagic stroke. The employee was hospitalized for several months and was put in an induced coma. He has severe residual deficits and is confined.
He filed a workers’ compensation claim under three sections of the New Hampshire Worker’s Compensation statute:
• RSA 281-A: 2 XI, XIII causal relationship to employment
• RSA 281-A: 23 medical hospital and remedial care, and
• RSA 281-A: 48 review of eligibility for compensation (which essentially is the claim for weekly indemnity benefits)
During the course of the litigation before the New Hampshire Department of Labor, we obtained all of his medical records and were able to undermine both his credibility and the causation of his hemorrhagic stroke by pointing to serious personal issues such as untreated hypertension, abuse of alcohol and tobacco, and weight-control struggles.
Under cross-examination, the employee also admitted to having stresses from his wedding and other personal problems.
The employer representative testified that the employee never mentioned or reported any stress as a result of his work
Dr. Eric Ewald provided an excellent medical opinion by stating that the employee’s hemorrhagic stroke was the result of his severe personal issues as stated above, and not related to the employee’s claim that a substantial risk of his employment caused significant aggravation to his underlying hypertension and thereby caused him to have the stroke.
The New Hampshire Department of Labor found that the employee’s horrific stroke was not the result of workplace stresses, but rather those personal risks listed above and denied causation of the employee’s claim under RSA 281-A: 2 XI, XIII.
This claim exposure for both medical bills (past, present and future) and indemnity would be in excess of $4 million.
This excellent result was accomplished by comprehensive preparation, outstanding teamwork, continual communication and discovery assistance among the claims representative, the employer and the medical expert.
Our New Hampshire team is always available to assist you with any questions.
Please feel free to reach out!
Attorney Richard Florino
(617) 242-9600 x 222
[email protected]
Attorney James O’Sullivan
(617) 242-9600 x 275
[email protected]
Attorney Matthew Solomon
(617) 242-9600 x 304
[email protected]
Attorney Matthew Fausch
(617) 242-9600 x 310
[email protected]
Attorney Robert Martin
(617) 242-9600 x 219
[email protected]