Breunig v. First Protection Services

Insurance Company

Sentinel Insurance Company

Date Decided

December 31, 2020

Panel Members

Elizabeth Elwin

Evelyn Knopf

Tom Pelletier


Procedure Discrimination Discrimination Procedure


ineffective assistance of counsel abuse of discretion

File Size

127 KB


Summary from the Troubh Heisler Attorneys

Joseph Breunig v. First Protection Services (attached) - Breunig worked as a security guard for FPS for 2 weeks and developed blisters from his work shoes that apparently progressed to cellulitis. He received medical treatment and was soon released to light-duty work, but FPS fired him for cause. He filed petitions for award, medicals and discrimination.

Judge Collier awarded him closed-end medical and lost time benefits but denied the discrimination claim. Breunig appealed. He initially had a WCB advocate who later withdrew, leaving Breunig to handle the hearing and appeal pro se. On appeal, he claimed his WCB advocate provided “ineffective assistance of counsel.”

The WCB Appellate Division affirmed Judge Collier’s decision, pointing out that he considered Breunig’s evidence, even if his written decision did not categorize it. The panel cited prior cases holding that WC benefits are only for lost earnings, not for “pain and suffering” or the inability to do a specific job, and that the WCB cannot order payment of “unspecified” future medical treatment.

The panel also noted that Dr. Bamberger’s §312 IME supported Judge Collier’s decision on the medical treatment and lost time, and that FPS terminated Breunig's employment for poor job performance, not in retaliation for his claiming a work injury. Finally, the panel noted that “ineffective assistance” applies to criminal cases, not WC cases, and that Breunig was a college graduate who presented his case well.

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