While many injuries sustained at work are minor, some workplace injuries cause permanent disabilities that leave the injured employee unable to earn a living. Under Massachusetts workers’ compensation law, you must prove that you are unable to earn wages of any kind to show that you are permanently disabled. If you do not present sufficient evidence of your permanent disability, you will be denied compensation. In Rivera’s Case, the Court of Appeals of Massachusetts held that simply showing an employee is unable to return to his prior employment is insufficient to show the employee was unable to earn wages in any position. If you were injured at work, it is important to consult with a seasoned workers’ compensation attorney in your pursuit of workers’ compensation benefits, to ensure your case is properly handled.

Facts of the Case

In Rivera, the employee injured his knees breaking up a fight at work in 1996, and subsequently underwent bilateral knee surgery. He received total incapacity benefits from his employer until he returned to work in 2006. In 2011, the employee then sought additional treatment for his left knee and filed a claim for benefits to enable him to undergo an evaluation. An administrative judge set forth a conference order stating employer was required to pay for the evaluation. The employee then underwent an MRI of his knee and an orthopedic surgeon recommended the surgery. The employer appealed the conference order but at the same time issued a utilization review approval of the suggested surgery. The employee underwent surgery, for which the employer denied coverage. The employee was out of work from March 13, 2012 through June 18, 2012, for which he filed a claim for benefits. The employer then paid for the surgery and medical services, but did not offer total incapacity benefits for the period of time the employee did not work.

Most medications have side effects, but some medications can cause more harm than good. If you sustained injuries or illness caused by adverse effects of medication, you may be entitled to recover damages. To recover on a claim against a pharmaceutical manufacturer, under Massachusetts personal injury law you must present expert evidence regarding the cause of your injuries. In Jackson v. Johnson, the United States District Court for the District of Massachusetts dismissed Plaintiff’s claims against a pharmaceutical manufacturer, due to Plaintiff’s failure to produce sufficient expert evidence in support of his claims. If you suffered injuries due to side effects caused by medication, it is essential to retain an experienced personal injury attorney to ensure the evidence necessary to support your claim is obtained.

Facts of the Case

In Jackson, Plaintiff alleged he was prescribed anti-psychotic medication, which caused him to become obese and develop diabetes and gynecomastia. Plaintiff sued defendant pharmaceutical manufacturer, setting forth claims arising out of negligence (negligence, negligent failure to warn, negligent misrepresentation and negligent infliction of emotional distress), breach of warranty (breach of warranty and breach of express warranty), products liability (strict products liability and strict products liability failure to warn), fraudulent concealment, and unfair and deceptive practices. After Plaintiff filed his lawsuit he sought and received several extensions of the deadlines for completing discovery and for filing disclosures of the experts who he would call on to support his claims. Plaintiff eventually provided disclosures for three of his treating physicians, whom he identified as experts. Defendant subsequently filed a Motion for Summary Judgment, asking the court to dismiss Plaintiff’s claims. Plaintiff argued that the Motion was premature, as discovery had not yet been completed. The court granted Defendant’s Motion.

While some workplace injuries resolve in a relatively short time, others continue to cause issues years after the initial injury. Employees are entitled to recover compensation for almost all work related injuries, but when an employee suffers more than one injury, it can become unclear who is responsible for providing workers’ compensation benefits. Pursuant to Massachusetts’s workers’ compensation law, only one insurer is liable for benefits for a disability, even if the employee suffers two or more injuries that contribute to the disability. In Lombardo’s Case, the Court of Appeals of Massachusetts explained that whichever insurer provided insurance at the time of the latest injury that contributed to an employee’s disability is liable for the entire amount of compensation benefits. If you sustained injuries in a work related accident, you should retain an experienced workers’ compensation attorney to assist you in recovering the full amount of benefits to which you are entitled.

Factual Background

Allegedly, the employee in Lombardo suffered a knee injury while in the course of his job duties. His employer’s workers’ compensation insurer accepted his claim and paid him the benefits he was owed. The employee subsequently returned to work without issue for ten years. Reportedly, he was then diagnosed with arthritis and eventually underwent a total knee replacement. He retired prior to his knee replacement and filed a claim with the Department of Industrial Accidents for additional disability benefits.

Under Massachusetts law, every medical malpractice lawsuit must undergo an initial review by a tribunal to determine if the plaintiff has a possibility of recovering. The tribunal consists of a judge, a physician, and an attorney. If upon review the tribunal determines the plaintiff has insufficient evidence to raise a question of liability, the plaintiff must then file a $6,000.00 bond secured by cash or its equivalent to proceed with his or her case. While in some cases the bond can be reduced, the requirement that plaintiffs file a bond cannot be eliminated. If the bond is not filed, the plaintiff’s case will be dismissed. An inadequate bond is grounds for dismissal as well, as the Supreme Court of Massachusetts recently decided in Polanco v. Sandor. If you believe you were injured due to medical malpractice in Massachusetts, it is essential to retain an experienced Massachusetts medical malpractice attorney to pursue your claim, and to ensure you do not waive any rights to recovery.

In Polanco, the plaintiff filed a medical malpractice lawsuit against three treatment providers. Following a review of the case, the medical malpractice tribunal determined the plaintiff’s evidence was insufficient to raise a question of fact regarding liability. Subsequently, to fulfill the bond requirement, the plaintiff filed a surety bond in the amount of $6,000.00, which he obtained for $120.00. The defendants then filed a motion to strike the surety bond and dismiss the Complaint, arguing the surety bond did not meet the statutory bond requirements. Defendants’ motion was granted. The judge then reported his ruling to the Court of Appeals. The case was subsequently transferred to the Supreme Court of Massachusetts under its own initiative.

The court noted that the $6,000.00 bond a plaintiff must pay if the tribunal finds there is insufficient evidence the defendant acted negligently is payable to the defendant in the event the plaintiff does not ultimately prevail in his or her action. The tribunal review and the bond requirement were instituted to reduce frivolous lawsuits against medical providers. Upon review of plaintiff’s surety bond, the court found that it failed to fulfill the bond requirement. The court stated that allowing the plaintiff to pursue his case after only paying $120.00, rather than the $6,000.00 required by law, would defeat the objective of the statutory requirement. Moreover, the court noted the plaintiff failed to set forth any argument in support of his position that the surety bond was adequate.

People are often asked to sign waivers before engaging in activities that may be perceived as dangerous. Under Massachusetts personal injury law, signing such a waiver generally precludes the person who signed the waiver from pursuing a negligence claim against the released party. In Cahalane v. Skydive Cape Cod, however, the Appeals Court of the Commonwealth of Massachusetts held that it would not prevent the injured party from recovering for any gross negligence in contravention of the terms of the agreement.

In Cahalane, Plaintiff engaged Defendant’s services to go on a tandem skydive jump. Prior to embarking on her jump, Plaintiff signed a waiver in which she released any claims against Defendant for negligence or gross negligence. Plaintiff was permitted to purchase a release from the waiver, but chose not to do so. During the jump, Plaintiff was attached to an instructor. As they approached the ground the instructor performed a hook turn. Hook turns are disapproved of in skydiving safety bulletins, as they are a leading cause of death and injury in skydiving. Due to the manner in which the pair landed, both of Plaintiff’s femurs were fractured on impact. Plaintiff sued Defendant, alleging negligence and gross negligence. Defendant filed a Motion for Summary Judgment, arguing that the waiver barred Plaintiff’s claims. The trial court granted Defendant’s Motion and Plaintiff appealed, arguing the waiver was induced by fraud and was unenforceable. On appeal, the court held that the waiver was enforceable and precluded Plaintiff’s negligence claim but ruled that it did not bar Plaintiff’s gross negligence claim.

The court noted that Plaintiff was given ample opportunity to review the waiver and did not produce evidence that anyone made any false representations to her regarding the waiver. As such, the court held it was enforceable. The court noted, however, that while Massachusetts law favors the enforcement of releases for liability for negligent acts, a party cannot immunize itself from liability for grossly negligent or reckless acts. The court explained that gross negligence is more than a failure to exercise ordinary care and was better explained as great negligence, or conduct without any diligence or care. The court noted each case must be analyzed on its facts to determine if the defendant’s actions were grossly negligent, but additionally noted that a moment of inattentiveness in a dangerous situation could constitute gross negligence. As such, the court held that the question of whether Defendant was grossly negligent and therefore liable to Plaintiff could not be decided via summary judgment but must be submitted to a jury.

Collateral estoppel is a long-standing rule of law that people can only get “one bite of the apple.” In other words, people are not entitled to re-litigate the same facts or claims until they reach a verdict of their liking. There are certain requirements that must be met to preclude litigation due to collateral estoppel, however, and simply because facts were previously decided in another forum does not automatically prevent a court from allowing the same facts to be litigated. In workers’ compensation cases it is important to know whether you or your employer’s insurer are held to facts determined in a prior proceeding. In Yahoub’s case, the Appeals Court of the Commonwealth of Massachusetts held that an employer was not barred from litigating facts in a Massachusetts workers’ compensation claim that were previously found by the Department of Industrial Accidents.

In Yahoub, claimant was working as a custodian for the town of Milton when he sustained injuries in an altercation with his supervisor. After an investigation, claimant was determined to be the aggressor of the incident and was terminated. He then filed a claim for unemployment benefits with the Division of Unemployment Assistance who awarded him benefits after finding the town had not proven claimant engaged in deliberate misconduct that constituted a willful disregard of the town’s interest. The town appealed to the District Court, but the District Court affirmed the decision of the Division of Unemployment Assistance.

Claimant then filed a claim with the Department of Industrial Accidents seeking workers’ compensation benefits for severe emotional distress, which he alleged was caused by the altercation. A hearing was conducted in which testimony was presented from claimant, his supervisor, and a witness. During the hearing, the town’s workers’ compensation insurer argued claimant was not entitled to recover benefits due to the fact that his actions amounted to willful and serious misconduct and his termination was a bona fide personnel action.  Following the first day of the hearing, claimant moved to prohibit the insurer from re-litigating the facts found by the Division of Unemployment Assistance, under a theory of collateral estoppel. The administrative judge denied claimant’s motion due to lack of privity between the parties in each proceeding. At the conclusion of the hearing, the administrative judge agreed with the insurer and found claimant had initiated the altercation, and denied claimant’s claim. Claimant subsequently appealed to the reviewing board. The reviewing board affirmed the administrative judge’s ruling. Claimant subsequently filed an appeal with the Appeals Court of the Commonwealth of Massachusetts.

If you are injured while performing the duties of your job, you are most likely entitled to workers’ compensation benefits. Under Massachusetts workers’ compensation law, you are only entitled to benefits that are reasonable and related to your injury. There are guidelines set forth as to what treatment is considered reasonable, and any deviation from the guidelines is presumed to be both unreasonable and inappropriate. In Thibeault’s Case, however, the Court of Appeals of Massachusetts held the presumption of unreasonableness can be overcome if the facts of the case indicate other treatment is acceptable.In Thibeault, the employee was a heavy equipment operator, who injured his lower back moving a steel plate while working for his employer. He was diagnosed with discogenic back pain and a tear and disc bulge in the lumbar region. The employee underwent treatment for his back injury but declined to undergo surgery. He filed a workers’ compensation claim and received a lump sum settlement. The employee continued to get treatment from his primary care physician for his back injuries after he received the settlement. Part of the employee’s treatment included prescriptions for narcotic pain medication.

Subsequently, eight years after the employee received his lump sum settlement, he filed a post lump sum claim for medical benefits, which was denied. He then underwent an independent medical examination, after which the examining doctor issued a report and was deposed. The doctor stated, in part, that the employee suffered from chronic low back pain, which the employee was treating with medication. The doctor further stated that, although there did not seem to be any steps taken to reduce the dosage or wean the employee off the medication, continuing to treat with medication was reasonable, and the treatment was causally related to the employee’s workplace injury.

A hearing was held on the employee’s claim for post lump sum benefits, after which the administrative judge ruled in favor of the employee. The judge noted that while treating with medication was not the preferred protocol under the treatment guidelines, the doctor who performed the employee’s medical exam found the treatment to be reasonable and related to the original injury. The insurer appealed to the Department of Industrial Accidents reviewing board, which affirmed the administrative judge’s ruling. The insurer then appealed to the Appeals Court of Massachusetts.

People routinely entrust their health to medical providers with the expectation they will be provided with appropriate care. Unfortunately, at times, the medical treatment provided falls short of what is expected and actually results in harm to the patient. If treating providers fail to adhere to the standard of care imposed on them, they should be liable for any damages caused. The attorneys who defend doctors and hospitals in medical malpractice cases are often aggressive and will engage in several tactics to try to diminish any damages caused by their clients. The Massachusetts Court of Appeals recently held in Larkin v. Dedham Medical Associates, Inc., however, that a plaintiff’s future medical damages in a medical malpractice case are not entirely reliant on their past medical expenses. If you are pursuing a medical malpractice case in Massachusetts, it is important to have an aggressive Massachusetts medical malpractice attorney advocating on your behalf to enable you to recover the maximum damages possible.In Larkin, the plaintiff-wife was diagnosed by her primary care physician with a venous varix on the left side of her brain and an aneurysm on the right side of her brain. She underwent initial diagnostic testing at the direction of her physician, but he failed to order any follow-up testing. Additionally, when she became pregnant, he failed to report her brain abnormalities to her obstetrician. Due to the physical stress of giving birth to her child, the plaintiff-wife’s venous varix experienced an increase in intracranial pressure, and a clot formed. The plaintiff-wife subsequently suffered a stroke, which required extensive surgery and resulted in the permanent loss of her ability to walk or care for herself. She requires constant care, day and night, for the rest of her life.

The plaintiff-wife, along with her husband and child, sued her primary care physician and his practice group, seeking damages for pain and suffering, lost wages, past medical expenses, and future medical expenses. The plaintiff-husband also sought damages for loss of consortium. Following a jury trial, the plaintiffs were awarded $35.4 million, which included an award of $11 million for future medical expenses. The defendants filed multiple post-trial motions, arguing, among other things, that the plaintiffs’ counsel misrepresented the cost of the plaintiff-wife’s past medical bills, resulting in inflated future medical damages. The court denied the majority of the post-trial motions, and the defendants appealed. On appeal, the Massachusetts Court of Appeals affirmed.

Regarding the plaintiff-wife’s medical expenses, it was undisputed that the plaintiffs’ attorney misrepresented the plaintiff-wife’s past medical expenses as $4 million, when they were in fact $1,272,013.70. Following the trial, the judge rectified this error by reducing the verdict award for past medical expenses to reflect the actual amount. The defendants argued, however, that since the plaintiffs introduced limited evidence regarding future medical costs, the jury relied on the inflated amount of past medical expenses in awarding damages for the cost of future care, leading to an improper amount. The court disagreed with the defendants and sustained the future damages award. First, the court noted that an expert opinion is not required to prove future medical damages. The court also found the jury could have reasonably awarded $11 million in damages for future medical costs without relying on the misrepresentation, and it found that the trial court did not err in reducing the award only for past medical bills.

Many people avoid thinking about what will happen to their property and assets after their death, and ultimately die without a will to determine how their estate will be disbursed. Family members of an individual who dies intestate may not see the necessity in determining how the estate should be divided and may delay in taking any action to raise an estate and appoint a personal representative. The failure to take prompt action when a person passes away can have a damaging effect on your ability to control the estate’s assets, however. A recent Massachusetts estate planning decision held that you waive certain rights if you do not act in a timely manner.

In Bennett v. R.J. Reynolds Tobacco Company, the Superior Court of Massachusetts defined what rights a limited personal representative has with regards to a decedent’s estate.  Specifically, the court addressed whether a personal representative who is granted limited authority under the Uniform Probate Code (UPC) has standing to pursue tort actions that are an asset of the decedent’s estate. In Bennet, the Plaintiff’s father died on March 7, 2014. Section 3-108 of the UPC provides that no testacy or appointment proceeding may take place more than three years after a decedent’s death. If no personal representative has been appointed within three years of a decedent’s death, section 3-108(4) of the UPC allows for a personal representative to be named, but only for the limited purpose of determining successors to the estate. Section 3-108(4) specifically states, however, the representative does not have the right to possess any estate assets. Plaintiff was appointed the limited representative of the estate, pursuant to section 3-108(4), on July 26, 2017.

Plaintiff subsequently brought claims of wrongful death and civil conspiracy against the Defendant, as the limited personal representative of the estate of her deceased father.  The Defendant filed a motion to dismiss the Complaint, arguing the Plaintiff’s appointment as a personal representative of the estate under section 3-108(4) of the UPC did not grant her the authority to pursue a wrongful death claim or any tort claim that belonged to the decedent and became a part of the decedent’s estate upon his death.

Bullying is a persistent and ever growing problem throughout the schools in our nation, including schools in Massachusetts. While generally bullying is thought of as causing emotional harm, it often results in physical harm as well. Parents may be unsure who should be held accountable when their child suffers a personal injury due to bullying. Recently, the Massachusetts Supreme Judicial Court held that public defendants in Massachusetts personal injury cases are protected from liability for negligently failing to prevent the bullying and physical assault of a child.

In Cormier v. City of Lynn, a classmate pushed the child victim down a flight of stairs. The fall caused a spinal injury that ultimately resulted in the victim’s permanent paralysis. The victim’s parents brought a lawsuit against several defendants, including the City of Lynn, the school district and their public employees. The victim’s parents alleged that the victim had been subjected to constant bullying over the school year, and that his mother had reported harassing acts to the school officials on several occasions. The victim had reported acts of bullying and harassment to his teachers and school administrators as well. The victim’s parents alleged the school negligently failed to enforce its own anti-bullying policies and procedures.

The City of Lynn, school district and public employees filed a motion to dismiss arguing the claims against them were barred by the Massachusetts Torts Claim Act. The motion to dismiss was granted and affirmed on appeal. The Massachusetts Supreme Judicial Court granted the victim’s parents’ motion for further review on whether the Massachusetts Torts Claims Act barred them from bringing claims against the public defendants for negligently failing to prevent the victim from being bullied.