Tentindo, Kendall, Canniff & Keefe, LLP

DEFENSE VERDICT IN RETAIL STORE SLIP & FALL

2026-04-07T00:11:11Z

We are pleased to report that our Complex Litigation Group recently secured a full defense verdict following a jury trial in Worcester District Court in a contested premises liability action involving a national retail chain. The case was tried by Attorneys Daniel W. Buckley and Matthew A. Slater of our complex litigation group. The plaintiff alleged that, while shopping in a retail store, she tripped over a metal standing sign positioned near the checkout area and fell to the ground. She claimed the sign was improperly placed in a high-traffic area without adequate warnings, barriers, or safeguards, and that the store failed to maintain reasonably safe premises for customers. The plaintiff claimed significant and widespread injuries, including to her neck, knees, shoulders, hands, arms, and calves. She claimed ongoing pain, functional limitations, and long-term impairment affecting her daily life. She had extensive medical and rehabilitative therapies and incurred medical expenses in excess of $17,000.00. Despite the presentation of what was positioned as a strong liability and damages case, we successfully narrowed the issues for trial through motion practice, including securing a critical ruling precluding any argument or evidence of alleged negligent design defects. At trial, we further obtained a directed verdict in part, resulting in dismissal of the property owner entity before the case was submitted to the jury. Following a contested jury trial, the jury returned a unanimous defense verdict in favor of our client. This result underscores the importance of early strategic motion practice, disciplined evidentiary framing, and focused trial execution in defending high-exposure premises liability claims—even where plaintiffs allege significant injuries and present compelling narratives. If you have any questions about this result or would like to discuss defense strategies for similar claims, please do not hesitate to reach out to Matthew A. Slater, Esq. and his team via email at: mas@tkcklaw.com

Important Information re: MA mileage, MA judges, CT CME bills and a big win at the NH DOL!

2026-02-26T09:14:48Z

NEW MILEAGE RATE IN MASSACHUSETTS! The Massachusetts DIA announced that, effective March 23, 2026, mileage reimbursement for workers' compensation travel to and from medical treatment and vocational training and/or education under an approved Individual Written Rehabilitation Plan (IWRP) will increase to $0.62/mile. Circular Letter No. 363 may be found here. We previously advised that the Internal Revenue Service increased (as of January 1, 2026) the mileage reimbursement for business expenses to $0.725/mile, and that Connecticut, Rhode Island, New Hampshire and Vermont adopted the IRS standard and therefore provide mileage reimbursement for workers' compensation claim-related expenses in the amount of $0.725/mile as of January 1, 2026. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ NEW JUDGE IN MASSACHUSETTS! The Massachusetts Governor’s Council approved the nomination of five returning judges at the DIA and one new Administrative Law Judge. The returning judges are: 1. Senior Judge Omar Hernandez; 2. Worcester Administrative Judge Matthew King; 3. Springfield Administrative Judge Thomas Daniels; 4. Fall River Administrative Judge Michael Williams; and 5. Lawrence Administrative Judge Douglas Bean (seated since 1992). They also confirmed Administrative Judge Maureen Counihan. She was a solo practitioner in the Woburn MA area representing injured employees before being appointed to the DIA. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ PAY THOSE CME FEES TIMELY IN CONNECTICUT TO AVOID EXTRA CHARGES! In Connecticut, Chairman Stephen Morelli issued Memorandum 2026-01 directing that Respondents must pay all Commission Medical Exam (CME) bills and/or CME no-show fees within 45 days of receipt of the bill and report. Failure to timely pay the CME fee and/or the CME no-show fee within 45 days of receipt will result in an additional $450 charge assessed against Respondents. Respondents may request a hearing following payment of the no show fee to determine whether reimbursement and/or a credit is warranted. The memorandum confirms that CME bills are not required to be on HCFA’s, have no CPT code requirement, are not subject to any discounts, and that the rate is $900 unless a higher amount is approved by the ordering ALJ. It is warned that timely partial payment of the CME bill and/or CME no show fee will not negate the additional $450 charge. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ BIG WIN AT THE NEW HAMPSHIRE DEPARTMENT OF LABOR! Attorney Richard Florino received a extremely favorable (and interesting!) hearing decision on a case involving employee working from home who suffered a severe knee injury getting out of his seat while working at a computer. Under New Hampshire Workers' Compensation law, there are two prongs to show compensability or liability or causal relationship: 1. Legal causation, the actual mechanism of the alleged injury 2. Medical causation, whether the injury from a medical perspective was caused by the mechanism of the alleged injury In this case, we had to thread the needle on both issues as clearly the employee sustained a severe injury while arising out of his seat. However, under New Hampshire Workers' Compensation law, he had pre-existing conditions i.e. personal risks that contributed greatly to the injury pre-existing degenerative changes in his knee. Attorney Florino argued that the employer had no control over the workplace that the employee was working at the time of the incident. They did not create the workstation at home and only provided the employee with the laptop computer. Further, the act of getting out of the chair was a neutral risk under New Hampshire Workers' Compensation law and was not and had not been proven to be in this case, a risk of employment. The insurer's IME indicated that the act of getting out of the chair was a cause of the employees severe knee injury, however we were convincing and prevailed on the issue of legal causation and that the injury to the employee did not arise out of the employee’s work activities. A full denial of the employee's claim was awarded. Great job Rich!

IRS Mileage Reimbursement has increased effective 1/1/2026 to $0.725/mile

2026-02-26T09:47:30Z

2026 Mileage Rates! The Internal Revenue Service has advised that the mileage reimbursement for business expenses has increased effective January 1, 2026 to $0.725/mile. Connecticut, Rhode Island, New Hampshire and Vermont have historically followed and adopted the IRS standard, and therefore mileage reimbursement for workers' compensation claim-related expenses in those four states will increase to this same amount of $0.725/mile as of January 1, 2026. Massachusetts historically has neither followed nor adopted the IRS standard, and there has been no announcement yet this year regarding any potential or actual mileage reimbursement increase. Therefore, the reimbursement remains at $0.585/mile in Massachusetts as of January 1, 2026.

Vaccination Side Effects Not Compensable in Massachusetts

2025-10-30T19:23:22Z

TKCK is pleased to announce that Attorney Robert Martin recently won a hard-fought, complex claim in Massachusetts, involving an employee with a debilitating case of Guillain-Barré Syndrome (“GBS”) which he alleged was caused by a COVID-19 vaccine received for work. The employee, a crane mechanic, alleged that his employer mandated or strongly urged him to receive the COVID-19 vaccine, and that his resulting GBS was therefore a compensable work injury. Compensability of vaccine side-effects are governed by Hick’s Case, 62 Mass. App. Ct. 755 (2005), where the Appeals Court found that a flu vaccine side-effect was compensable because the employer strongly urged its employees to receive the flu shot. There were also other factors unique to that case which made the receipt of the flu shot more work-related (i.e., the employer was a hospital, the employee worked in direct patient care, the employer offered and administered the shots on its premises, etc.). In the present matter, the employee’s health deteriorated two weeks after he received the vaccine. He was ultimately diagnosed with GBS, an autoimmune disorder which causes the patient to lose function of their limbs. Upon workup at the emergency room, the employee also tested positive for Lyme disease, further complicating the question of medical causation. The employee’s condition required seven months of inpatient hospital and rehabilitation stays. The resulting medical exposure was enormous. The employee filed a claim for permanent and total incapacity, with a lifetime § 34A exposure approaching $1,000,000.00. We denied the claim, asserting that the vaccination was entirely voluntary and that the employer had not compelled or encouraged any of its employees to receive it. We further argued that the employee could not prove, to a reasonable degree of medical certainty, that the vaccine actually caused the GBS. After a full evidentiary hearing, the administrative judge credited the employer’s testimony and determined that the employee failed to establish that vaccination was a condition of employment. Because the vaccination was voluntary, the judge concluded that the illness did not “arise out of and in the course of employment.” Due to the judge’s denial on this threshold compensability question, he did not rule on the question of medical causation. However, he noted in his findings of fact that he adopted the insurer’s medical expert who opined that the GBS was not caused by the COVID-19 vaccine. Accordingly, the judge denied the employee’s claim in its entirety. The decision reaffirmed the fundamental rule that to recover under Massachusetts workers’ compensation law, the injury must arise out of and in the course of the employment. Where an action, such as vaccination, is undertaken voluntarily and mandated or required by the employer, any resulting illness generally falls outside the scope of compensable injuries. The case is also illustrative of the importance of thoroughly reviewing the complete medical records (over 5,000 pages) and obtaining a convincing expert medical report to persuade the judge on such a complex causal relationship question. As post-pandemic employment disputes continue to arise, this case helps clarify the limits of employer responsibility and the evidentiary burden employees must meet to establish that a medical condition is truly work-related. We congratulate Attorney Robert Martin for his extensive and exhaustive efforts.

EVERYTHING YOU NEED TO KNOW ABOUT COLA BENEFITS, SAWWs AND MINIMUM WAGE INCREASES IN MASSACHUSETTS

2025-10-03T21:13:14Z

EVERYTHING YOU NEED TO KNOW ABOUT COLA BENEFITS, SAWWs AND MINIMUM WAGE INCREASES IN MASSACHUSETTS (as of October 1, 2025 The Massachusetts Department of Industrial Accidents has announced (via Circular Letter #362) the new State Average Weekly Wage, the Maximum Compensation Rate, and the Minimum Compensation Rate for injuries on or after October 1, 2025: The Maximum Compensation Rate is $1,922.48 for injuries on or after October 1, 2025. The Minimum Compensation Rate is $384.50 for injuries on or after October 1, 2025. COLA BENEFITS: With respect to the COLA multipliers under Section 34B, for all dates of injury on 12/24/1991 and after, use the multipliers in column 8 times the correct weekly base benefit. With respect to the COLA multipliers under Section 34B, for all dates of injury prior to and including 12/23/1991, use the multipliers in column 5. Remember that the new adjusted weekly benefit after 10/1/2025 can never exceed $1,922.48, regardless of date of injury. Please be sure to verify you have filed for COLA reimbursement on claims for dates of injury prior to and including 12/23/1991 within two years of the date payments were made. This Circular Letter also updates the Attorneys' Fee Schedule under Section 13A for all proceedings before the DIA effective 10/1/2025.

The schedule for 13A(5) Hearings increases to $6,876.85.
13A(2) for a Liability Conference increases to $1,964.82.
13A(4) for a Discontinuance Denial increases to $1,375.37.

The Circular Letter #362, the Annual COLA/SAWW announcement dated and effective October 1, 2025, is attached here for your review. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ To determine the Adjusted Benefit for COLA payments, you multiply the Base Compensation rate (§§ 34A or 31) by the multiplier that corresponds to the date of injury. See § 34B(b). For instance, for dates of injury between 10/01/2000 and 09/30/2001, the multiplier is 1.5286 x the Base Benefit = Adjusted Benefit (the increased difference is the Supplemental Benefit). Below is the specific COLA statute, M.G.L. c. 152 § 34B: Section 34B: Review date; supplemental benefits to Sec. 31 or 34A Section 34B. October first of each year shall be the review date for the purposes of this section. Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall have his weekly benefit adjusted, without application, in accordance with the following provisions; provided, however, that no increase in benefits shall be payable which would reduce any benefits the recipient is receiving pursuant to federal social security law. (a) The director of administration shall determine the percentage change between the average weekly wage in the commonwealth on the date of the injury and the average weekly wage in the commonwealth on the review date. For purposes of this section, no increase in the average weekly wage in the commonwealth shall exceed the lesser of the following: (i) the percentage change in the most recent annual consumer price index calculated by the Bureau of Labor Statistics of the United States Department of Labor for the northeast region for all urban consumers; (ii) five percent. (b) The death benefit under section thirty-one or the permanent and total disability benefit under section thirty-four A that was being paid prior to any adjustments under this section shall be the base benefit. The base benefit shall be changed on each review date by the percentage change as calculated in paragraph (a); the resulting amount shall be termed the adjusted benefit and is the amount of benefit to be paid on and after the review date. If the adjusted benefit is larger than the base benefit, the difference shall be termed the supplemental benefit. In no instance shall the adjusted benefit under this section be greater than three times the base benefit. (c) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit. Insurers shall be entitled to quarterly reimbursements for supplemental benefits, pursuant to section sixty-five, for cases involving injuries that occurred on or before October first, nineteen hundred and eighty-six, and for those cases occurring thereafter, to the extent such supplemental benefits are due to the increase of greater than five percent in the average weekly wage in the commonwealth in any single year. No self-insurer, self-insurance group or municipality that has chosen non-participation in the assessment provisions for funding such reimbursements pursuant to section sixty-five shall be entitled to such reimbursements. Below is the Adjudicatory Rule of the DIA, 452 C.M.R. 3.03: 3.03: Reimbursement of Cost of Living Adjustments (1) A person entitled to receive yearly increases in benefits under M.G.L. c. 152, § 31, pursuant to St. 1982, c. 663, § 1, shall continue to receive said benefits on or after November 1, 1986 and shall not be eligible for benefits pursuant to M.G.L. c. 152, § 34B. For the purposes of M.G.L. c. 152, § 65(2)(a), ``adjustments to compensation pursuant to M.G.L. c. 152, § 34B" shall not include benefits which are paid under M.G.L. c. 152, § 31, pursuant to St. 1982, c. 663, § 1. Any overpayment by an insurer or self-insurer resulting from the promulgation of 452 CMR 3.00 shall be recovered only through the use of future credits and not through a reduction of benefits currently paid. (2) The initial increase in benefits under M.G.L. c. 152, § 34B shall be payable on the first October 1^st subsequent to the date marking the 24-month anniversary of the date of injury. If the date marking the anniversary falls on a review date, the increase is payable as of that review date. (3) A party requesting reimbursement pursuant to M.G.L. c. 152, § 65(2)(a) or § 65(2)(b), shall file a form prescribed by the Department, received and date stamped by the Department no later than two calendar years from the date on which the benefit payment, for which the reimbursement request being filed, was due. (4) An employee receiving benefits under M.G.L. c. 152, §§ 31 or 34A, who has received a written request from an insurer, shall cooperate with the insurer in obtaining or providing any information from the Social Security Administration necessary to the calculation of any adjusted benefits that may be due under M.G.L. c. 152, § 34B. No insurer shall be required to pay adjusted benefits until all necessary information is available, provided that the insurer has made a good faith effort to obtain that information. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The following is the information pertinent to CR-28 forms. The links will get you to the form and the calculation sheet to be used to determine if there is a partial or total offset. CR-28 - Massachusetts Workers' Compensation COLA Data Form The following information is provided for use in determining if the offset applies to COLA benefits due to receipt of Social Security benefits. Click to access the COLA Offset Worksheet. The Massachusetts workers' compensation law provides for a Cost-of-Living Adjustment payment for certain WC recipients. The COLA applies to workers when have collecting benefits for a specific period of time, and is payable as long as the increase would not cause additional offset in SSA benefits. To assist WC insurers to determine if a COLA is payable, the SSA provides disability benefit (DIB) payment information to them upon request, via the state's Form CR-28 - COLA Data Form. DIB payment information requests for a worker receiving WC benefits under Massachusetts law should be sent to: Social Security District Office ATTN: WC Unit 10 Causeway Street, Room 148 Boston, MA 0222-1213 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ There are a couple of misconceptions about the payment of COLA. Section 34B states that COLA “shall be paid without application” subject to a determination of COLA offset by Social Security Benefits. This is where Rule 452 CMR 3.03(4) comes into play and the insurer and the employee are supposed to work cooperatively to obtain and ascertain the COLA offset information.

The primary class of benefit recipients are those collecting §34A Permanent and Total Incapacity and §31 Dependency benefits.
COLA is not payable until the first October 1st which is more than two years after the date of injury.
A §34A recipient below age 62 and on SSDI, not SS retirement, is within the class of individuals that absolutely require a CR-28 each year.
A §34A recipient above age 62 and converted from SSDI to SS Retirement does not experience a COLA offset. Send them a CR-28 only to confirm that SS Retirement benefits are being paid.
A §34A recipient above age 65 is probably on SS Retirement and therefore not subject to COLA offset.
There is no offset on §31 Dependency (widow’s or other dependents’) benefit cases. Any SS that may be paid is a death benefit and is not subject to the Massachusetts COLA Offset.

The best way to complete the COLA information process is to send the CR-28 to the employee, ask them to sign and send it back to you. You then submit it to the SS address above and work with the information provided. This ensures that you have the information at your disposal, not the employee's. A general rule of COLA offset is that it does not apply to very high and very low wage earners. They either made too much or too little for the COLA offset provisions to apply. It is the blue-collar wage earner with WC weekly rates between $400 and $800 that typically experience the partial or complete offset. Lastly, bear in mind the WC calculates a weekly rate and Social Security monthly. 52 weeks/12 months = 4.333 weeks per month. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ SAWW (State Average Weekly Wage): What is it and what does it mean? The new SAWW of $1,922.48 means that it applies to all cases with an AWW over $3,204.88 ($166,614.93 per annum) The new Maximum partial rate is $1,441.86 (Represents a theoretical earning capacity of $801.03). The new SAWW of $1,922.48 applies to all § 34A P&T and § 31 Dependent’s Cases with an AWW over $2,883.72. The new Presumptive Statutory Period of Dependency under § 31 is now $480,620.00 (250 x $1,922.48). The new minimum of $384.50 is now applicable to AWWs that are between $640.83 and $384.50. AWWs below $384.50 get the full AWW. (§34: “Unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.”) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Use the Canniff Constant of 187.2 (187.2 x AWW): [Use 312 for Max & Min SAWW cases, as well as for AWW below the minimum] of the maximum full value of 3 years of 34 and 4 years of 35 is now $599,813.76 ($299,906.88 + $299,906.88) ($99,968.96 and $74,976.72 per annum.) ($1,922.48 + 1,441.86] ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ One last thing: in the event that the employee is on partial, the new double SAWW figure is $3,844.96. (Section 35: An insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the Commonwealth at the time of such reduction.) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ MASSACHUSETTS MINIMUM WAGE: The Massachusetts Minimum Wage was changed to $15.00 effective January 1, 2023 and the 40 hour work-week is worth $600.00. The schedule of the Minimum Wage is as follows: Date: January 1, 2021

Standard Minimum Wage = $13.50
Tipped Minimum Wage = $5.55

Date: January 1, 2022

Standard Minimum Wage = $14.25
Tipped Minimum Wage = $6.15

Date: January 1, 2023

Standard Minimum Wage = $15.00
Tipped Minimum Wage = $6.75

There is nothing to prevent an administrative judge to take into account the prospective wage changes and incorporate them into their order.

See § 10A(2)(b) : “Nothing in this section shall restrict the authority of an administrative judge to order weekly benefits or health care services for a closed period into the future or to order that such benefits or services be initiated, modified, or terminated at a particular date in the future.”

Below is the actual statute Chapter 151: Section 1 and the applicable Regulations 454 CMR 27 applicable to minimum wage. Massachusetts laws & regulations: MGL c.149, § 152A Service charges and tips MGL c.151 Minimum Fair Wages. Sections 1 and 7 increase minimum wage over the next several years. 454 CMR 27 Minimum wage https://www.mass.gov/doc/454-cmr-27-minimum-wage/download

FOR YOUR REFERENCE: CURRENT SAWWs FOR ALL SIX NEW ENGLAND STATES AS OF 10/1/2025

2025-10-03T21:06:58Z

HAPPY FALL! HERE ARE THE CURRENT MAXIMUM AND MINIMUM COMPENSATION RATES AND/OR SAWWs IN THE NEW ENGLAND STATES

MASSACHUSETTS (effective October 1, 2025) (Circular Letter #362) The Maximum Compensation rate is $1,922.48 for injuries on or after October 1, 2025. The Minimum Compensation rate is $384.50 for injuries on or after October 1, 2025. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CONNECTICUT (Memorandum 2025-04) For Injuries on or after October 1, 2025: Temporary and Permanent Total Disability: · Maximum weekly compensation benefit is $1,716.00 · Minimum weekly compensation benefit is the lesser of $343.20 or 75% of the average weekly wage. Temporary Partial Disability: · Maximum weekly compensation benefit is $1,220.00 · No minimum weekly compensation benefit applies Permanent Partial Disability: · Maximum weekly compensation benefit is $1,220.00 · Minimum weekly compensation benefit is $50.00

The weekly benefit tables for October 1, 2025 through September 30, 2026 can be found here. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ RHODE ISLAND (effective October 1, 2025) (Maximum Compensation Rates) The Maximum Weekly Compensation rate effective October 1, 2025 is $1,622.00. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ NEW HAMPSHIRE (effective July 1, 2025) The Maximum Total Disability rate is $2,309.00 The Minimum Total Disability rate is $461.74 The State Average Weekly Wage (SAWW) is $1,539.13 (Historical Rate Schedule here) *Mileage Reimbursement has increased to $0.70/mile* ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ VERMONT (effective July 1, 2025) The Maximum Compensation rate is $1,836.00 (for DOIs after 6/30/1986) The Minimum Compensation rate is $612.00 (not including dependent's benefits) (Historical Rate Schedule here) *Mileage Reimbursement has increased to $0.70/mile* ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ MAINE (effective July 1, 2025) The State Average Weekly Wage is $1,198.84 (for DOIs occurring on or after 1/1/2013) The multiplier as of July 1, 2025 is 1.04732. This multiplier is obtained by dividing the new SAWW by the preceding year’s average weekly wage. There is no annual adjustment for injuries occurring on or after January 1, 1993. There is no adjustment for injuries occurring on or after November 20, 1987 during periods of partial incapacity. (Historical Rate Schedule here)

CONGRATULATIONS TO OUR NH WC TEAM – 2 HUGE WINS!

2025-08-22T05:10:39Z

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 rjf@tkcklaw.com Attorney James O'Sullivan (617) 242-9600 x 275 jmo@tkcklaw.com Attorney Matthew Solomon (617) 242-9600 x 304 mjs@tkcklaw.com Attorney Matthew Fausch (617) 242-9600 x 310 mjf@tkcklaw.com Attorney Robert Martin (617) 242-9600 x 219 rsm@tkcklaw.com

STATUTORY CHANGES TO THE VERMONT WC ACT EFFECTIVE JULY 1, 2025

2025-07-10T05:20:53Z

STATUTORY CHANGES TO THE VERMONT WC ACT EFFECTIVE JULY 1, 2025 Vermont’s General Assembly made several changes to their workers’ compensation laws, effective July 1, 2025. Namely: 1) 21 V.S.A § 601(31) is added to include medical case management services to the benefits or services that can be requested through the preauthorization process. 21 V.S.A. § 640b is likewise amended to extend the same procedural process that currently applies to requests for medical treatment and surgical, medical, and nursing services and supplies, including prescription drugs and durable medical equipment, to requests for medical case management services. 2) 21 V.S.A. § 602(d) is added to require that insurance carriers provide translation services at no cost to claimants with limited English proficiency. 3) 21 V.S.A. § 650 is amended to increase penalties for multiple late indemnity payments. Penalties for late payments will remain at the greater of $10.00 or five percent for the first late payment. The penalty will then go up to 10 percent for a second violation, and 15 percent for third and subsequent violations. The Act also calls for the Department of Labor to conduct a study regarding the frequency of late indemnity payments, due back to the legislature in January of 2027. This will require quarterly reporting by carriers, with the reporting form to be distributed to the carriers in the near future. These changes, which went into effect on July 1, 2025, can be found in Sections 22 through 25 of Act 40.

UPDATED MAXIMUM AND MINIMUM COMPENSATION RATES EFF 7/1/2025 FOR NH, VT & MAINE

2025-07-02T18:49:57Z

NEW HAMPSHIRE - (effective July 1, 2025)

The Maximum Total Disability rate is $2,309.00

The Minimum Total Disability rate is $461.74

The State Average Weekly Wage (SAWW) is $1,539.13

(Historical Rate Schedule here)

*Mileage Reimbursement has increased to $0.70/mile*

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

VERMONT - (effective July 1, 2025)

The Maximum Compensation rate is $1,836.00 (for DOIs after 6/30/1986)

The Minimum Compensation rate is $612.00 (not including dependent's benefits)

(Historical Rate Schedule here)

*Mileage Reimbursement has increased to $0.70/mile*

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

MAINE - (effective July 1, 2025)

The State Average Weekly Wage is $1,198.84 (for DOIs occurring on or after 1/1/2013)

The multiplier as of July 1, 2025 is 1.04732. This multiplier is obtained by dividing the new SAWW by the preceding year’s average weekly wage.

There is no annual adjustment for injuries occurring on or after January 1, 1993.

There is no adjustment for injuries occurring on or after November 20, 1987 during periods of partial incapacity.

(Historical Rate Schedule here)

BIG WIN IN NEW HAMPSHIRE CONCERNING THE GOING AND COMING RULE & FATIGUE CAUSING AN INJURY

2025-04-09T18:10:58Z

TKCK’s New Hampshire practice group scored a big win at the New Hampshire Compensation Appeals Board with respect to the Going and Coming Rule. Attorneys Richard Florino and Matthew Fausch argued this case successfully. 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. Testimony offered at the CAB included three employer witnesses who testified that covering extra shifts is completely voluntary and at the employee’s choosing, and that furthermore extra financial compensation is offered commensurate with the extra shifts. The employer testified that there is no mandate that employees must take on extra shifts; all extra shifts are on a voluntary basis. Further testimony elicited from the employer that employees may choose to do partial extra shifts if they wish. The CAB discussed the distinction between a true “special errand” which is outside the employee’s normal job description and is being asked by the employer of the employee to perform, versus the regular duties that were to be performed in this extra shift (normal every day patient transfers). The CAB also ruled 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. Further testimony detailed information regarding the ambulance base facility and the accommodations for rest, sleep and food. Further testimony was offered that the employee had been off duty between 24 and 48 hours prior to the motor vehicle accident, which should have been ample time for the employee to rest and sleep. The CAB rejected the employee’s argument that fatigue and an excessive work schedule were a significant contributing cause to the employee’s injury, and held that the evidence indicated the employee “…rested at home, slept well, and did not work for approximately thirty three hours prior…” to the injury and that “…the amount of rest should have been sufficient.” The Compensation Appeals Board denied the employee’s claim for compensation. This decision was 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. If you have any questions on this case or workers' compensation in New Hampshire in general, please contact any member of our New Hampshire team.