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The Commonwealth’s Appeals Court recently issued a Massachusetts workers’ compensation decision affirming the determinations made by the Administrative Judge and Reviewing Board granting temporary and permanent benefits to a bank teller who suffered a series of back injuries at work. The employee first reported transitory back pain in 2011, but she was asymptomatic for two years following her treatment. In 2014, she had another round of back pain after lifting several coin rolls from the floor to take to a service window. The employee managed to return to work but experienced increasing back pain for several months. The employee left to treat the pain and came back, but she eventually left for good in January 2015 after the pain refused to subside.

At the hearing, the judge found the teller suffered an industrial injury in 2014, which resulted in total disability from July 12, 2014 through November 3, 2014, and again from January 2015 and ongoing. The insurer was directed to pay the compensation for those periods as well as payment for the necessary medical treatment provided. The insurer appealed, arguing the Board’s decision upholding the administrative judge’s award was arbitrary and capricious, and it was not based on the evidence provided in the record.

The appellate court found the evidence, although conflicting, supported the judge’s findings and conclusions in favor of the teller. The administrative judge found the teller’s testimony to be credible and persuasive, and he adopted her account for all of the substantive points. The submitted notes and testimony from the treating and examining physicians backed up the teller’s testimony, and the accident in March 2014 was determined “with reasonable medical certainty” to be the cause of the teller’s pain. The judge adopted the opinion of the physician who concluded the teller was unable to carry out her previous work functions. While this opinion differed from the other physician’s testimony, the court found it was within the judge’s discretion to adopt one opinion over the other.

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The Workers’ Compensation Act has a provision that states that any employee who files a claim or accepts payment for a personal injury that occurs in the workplace releases their employer from any and all related claims. The Massachusetts appellate court recently issued a decision examining whether or not this provision barred a negligence lawsuit filed by an injured employee. The employee claimed he was hired as an independent contractor to work as a chef, which entitled him to pursue a tort remedy in civil court. The injured man’s case claimed he slipped and fell on ice while working, which caused him to suffer a broken right ankle. The chef asserted his damages included more than $28,000 in medical bills, lost wages, permanent impairment, and physical and emotional anguish.

The chef initially filed a Massachusetts workers’ compensation claim, which was denied by the employer. The employer justified the refusal of benefits by arguing that they were not liable and that he was an independent contractor. The case was settled by a lump-sum payment and allowed for payment of medical expenses incurred up to the date of the approval of the settlement. The settlement excluded payment for future medical treatment of the injury. After the settlement, the injured person filed a negligence lawsuit against his employer. The employer moved to dismiss the action, arguing the action was barred by the settlement agreement.

The injured worker countered the claim was not barred because the Department of Industrial Accidents (DIA) never resolved whether or not he was an independent contractor or employee. The appellate court determined Section 23 of the Act barred his claim, regardless of whether a distinction was made regarding the type of employment. The employee entered into a settlement agreement option allowed by the Workers’ Compensation Act, which resolves a matter without acknowledging fault. The court compared it to a prior Massachusetts case, Kniskern v. Melkonian, 68 Mass. App. Ct. 461, 465-466 (2007), with an injured worker who claimed he was an independent contractor. In that case, the court pointed out a lump-sum settlement under the Act would not have been possible if the injured person were an independent contractor instead of an employee. Anything received under the Act can only be provided to employees, so the injured person’s ability to settle the claim results in an indirect determination he was an employee.

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The Massachusetts Appeals Court reversed the dismissal of an injured person’s claim in a recent case. The injured person was rear-ended at a stoplight and later filed a Massachusetts car accident case, claiming the accident caused her pre-existing medical conditions to be aggravated, resulting in several medical bills. The trial had been rescheduled several times at the request of the injured person, but the injured person failed to show on the last scheduled trial date. The case was dismissed with prejudice for “want of prosecution,” even though the injured person’s attorney was present and ready for trial. The injured person appealed.

The plaintiff had asked and been granted three continuances for the scheduled date of trial. After the third continuance, the court indicated that would be the last one. The injured person still filed an emergency motion to continue the fourth date because her daughter was scheduled to give birth on or around the trial. This motion was denied, so the injured person’s attorney requested that if the client could not attend the trial, he’d be allowed to provide an explanation of her absence for her grandchild’s birth. The court advised this would be acceptable.

The injured person’s daughter did go into labor on the day before the trial, suffering complications. Despite the doctor’s note advising the daughter was in fact in the hospital and experiencing complications due to her high-risk pregnancy, the court denied the renewed request for another continuance. The court then dismissed the injured person’s complaint with prejudice, determining the injured person could not prove her case without providing testimony that she was the operator of one of the cars involved in the accident. The judge did not believe the injured person would show up for any part of the trial, and this would likely result in a directed verdict.

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Workers’ compensation benefits make a distinction between two categories – whether an injured employee was partially disabled or totally disabled, and whether the disability was temporary in nature or permanent. Benefits are calculated based on the combination the injured worker possesses. Administrative hearings are conducted to help determine which category applies, and this affects the amount of benefits received and the length of time it is provided to the injured employee.

The Massachusetts Workers’ Compensation Reviewing Board recently issued a decision that considers these distinctions. A personal care assistant suffered a workplace accident while assisting a bedridden patient. This accident caused radiating pain, beginning in her lower back and going into her left leg and foot. She was eventually diagnosed by an impartial physician with chronic lumbar strain and left leg radiculopathy. The diagnosis also included a degenerative condition in her spine. At the hearing, it was agreed she would not be able to continue work as a personal care assistant, due to her inability to carry out the physical demands of the job.

The employee’s treating physician eventually cleared her to do light duty work “if available.” A month after that, the doctor conducted another examination and advised there was no work disposition until further workup and treatment. The judge utilized the first assessment and found the employee could perform light duty work but rejected the physician’s opinion that she could not work unless she received additional treatment. The judge adopted the opinions of other physicians who examined the employee six months prior to the treating physician’s assessment she could return to light duty. Total temporary benefits were awarded from December 2012 to September 2013 and partial disability benefits from September 2013 onward. The injured employee appealed, disagreeing with the assessment she was only partially incapacitated, based on the note regarding light duty and the physicians’ opinions given based on examinations performed six months before.

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The manufacturer of a product can be held accountable for a consumer’s injury if the company failed to warn of side effects. Federal law requires manufacturers of a generic drug to provide users with the same warning as the brand name product. Massachusetts’ highest court recently issued an opinion outlining when and how an injured patient can pursue a Massachusetts product liability action against the brand name manufacturer after she or he has been injured following the use of a generic prescription. The court ultimately concluded an injured patient is precluded from pursuing a negligence action against the brand name manufacturer, nor are they able to bring or join a class action claim.  However, an injured patient is able to pursue a claim of recklessness if there was an intentional failure to to update the label when the company knew or had reason to know of an unreasonable risk associated with the use of its product, since federal law requires generic medication to use warnings identical to brand name drugs.

Drug manufacturers that innovate a new product must go through a rigorous approval process overseen by the Food and Drug Administration (FDA). Drugs must be safe and effective, and they must come with a label that is accurate and adequate. The process is lengthy and expensive. In order to provide lower-cost alternatives, the U.S. Congress enacted legislation that allowed generic drugs to use an abbreviated application process as long as their product was the “bioequivalent” of its brand name counterpart. The generic manufacturer must then use the same warning label as the brand name. To balance the brand name’s research and development interest against the public’s need for affordable medicine, the brand name manufacturer enjoys an extended patent monopoly while simultaneously shouldering greater responsibilities for the adequacy and accuracy of its warning label. Generics cannot change their label without approval, but brand names can.

The case at hand arose from the use of a generic drug prescribed to treat protastic hyperplasia in those who have an enlarged prostate. After the patient began the use of this drug, he experienced several side effects, including erectile dysfunction and a decreased libido. These side effects persisted and worsened, even after he ceased taking the medicine. Eventually, the patient was diagnosed with an androgen deficiency and hypogodanism, which was connected with his use of the generic prostate drug. The condition continued and could potentially continue indefinitely. The warning label, styled after the brand name drug, warned that sexual side effects could occur but would stop after use of the drug ceased.

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If an accident occurs, both parties will likely look to insurance policies for coverage of a claim. The at-fault party, in particular, expects his or her insurance company to step in and defend the claim for them, shielding them from full personal liability. This is known as indemnification. The Appeals Court of Massachusetts recently looked at whether or not an insurance company providing a homeowner’s policy was obliged to defend or indemnify the policyholder’s son in a Massachusetts personal injury lawsuit filed by someone who was punched in the face by the son while in the homeowner’s home. The injured person filed suit against the son, alleging the insured’s son struck his face, causing serious and permanent injuries.

The father was insured under a personal umbrella liability policy in addition to his homeowner’s policy. The insurance company, after notice of the incident and lawsuit, moved for a declaratory judgment by the trial court to establish it had no duty to defend or indemnify the son. The trial court granted the motion, and the homeowner appealed. The appellate court reviewed the findings for clear error and for a ruling on the questions of law.

The Appeals Court first assessed the testimony of three witnesses who were present during the altercation. Their testimony resulted in finding the son hit the personal injury plaintiff three times in the face with a closed fist. This knocked him unconscious and led to further injuries after he hit his head on the pavement as he fell. The plaintiff sustained fractures in his face, jaw, and skull, developing a seizure disorder. In its assessment of whether or not this type of incident was something covered under the homeowner’s policy, the trial court determined the incident was not an act of self-defense nor an accident. The court found the son acted intentionally with the purpose of causing the other man injury.

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A recently published Massachusetts Workers’ Compensation Reviewing Board decision assessed an administrative decision ordering the insurer for the employer to pay reasonable and related medical expenses under sections 13 and 30 of the Workers’ Compensation Act. The insurer appealed the decision, arguing the administrative judge erred by ruling in the employee’s favor, claiming the judge did not make consistent findings regarding the medical evidence and failed to address the motion to discontinue weekly benefits. The Board disagreed with some of the insurer’s characterizations of the findings but ultimately determined the case needed to be recommitted for additional findings of fact.

The employee is a 59-year-old woman with an associates degree, whose work history includes manual labor and desk positions. Prior to the injury central to this decision, the woman suffered an injury in the mid-90’s while working for a chain store, hurting her lower back. She was additionally harmed by a motor vehicle accident in 2005, sustaining head, neck, lower back, and shoulder injuries. The injury at hand occurred in 2014 while she was employed as a cook. Her position required her to make and serve lunch to over 100 people, lifting and washing heavy cookware before, during, and after every meal for an eight-hour period. The employee did not have issues with her low back for most of her employment until she slipped while moving food from one station to the other. While the employee caught herself before hitting the ground, she immediately felt pain in her low back. She then fell a second time on the same day. Both incidents were reported, and she received treatment for her injuries at a local hospital. The insurer provided payment for temporary total incapacity benefits following the accident. The injured worker also received acupuncture, injections, and chiropractic care, but those only provided fleeting relief.

Procedurally, the case moved forward with a hearing regarding a claim for permanent benefits. The insurer asked the judge to discontinue the temporary benefits. The judge denied the worker’s claim for section 34 benefits but did not address the insurer’s request to discontinue benefits. The judge additionally ordered the insurer to pay for a proposed lumbar surgery. Only the insurer appealed from the hearing decision. The Board felt the findings of fact were acceptable regarding the medical evidence, but it did agree the judge fell short by failing to address the insurer’s motion to discontinue benefits. The complaint in 2015 sought a discontinuance of the issued benefits, appealing a conference order that required it to pay the maximum partial incapacity benefits. Earning capacity was not formally discussed, even though the determination to deny permanent benefits included a finding the injured person could earn her pre-injury average weekly wage.

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Several things must be considered when a personal injury settlement is reached. One of these considerations is whether the injured person is required by law to notify and pay a portion of the settlement to a third party. Some entities, often health care providers, are allowed to place a lien on settlements or benefits so that they can be paid for the services previously rendered. The Appeals Court recently examined an appeal by the estate of a woman injured in a Massachusetts car accident, which was ordered to provide payment to the Massachusetts Executive Office of Health and Human Services (MassHealth).

The estate reached a settlement with the defendant driver who caused the car accident and subsequent injury. This accident aggravated the now-deceased plaintiff’s dementia prior to her death a year after the accident. The estate filed suit within two years after her passing and ultimately reached a settlement of $250,000. Before the injured person died, MassHealth provided over $18,000 worth of medical care and imposed a lien on the claim for reimbursement of expenses paid for the injured person’s care.

The estate and MassHealth conferred about the lien prior to the settlement, discussing the possibility to reduce the lien. However, nothing came of these discussions because the injured person’s attorney did not submit the forms that would reduce the lien. After the settlement was reached with the defendant driver, MassHealth issued demand letters to the estate for payment. Eventually, MassHealth learned it was not named on the settlement check. Initially, MassHealth attempted to discuss the matter with the estate’s attorney, but it eventually moved to intervene on the settlement. The lower court granted the motion for intervention and ordered payment of the medical expenses. The estate appealed.

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The timing of when a civil action is filed can determine whether or not the lawsuit is heard at all in the civil justice system. Massachusetts General Laws dictate the period in which a Massachusetts medical malpractice action must be filed following an accident or injury. When the injury involves medical malpractice among a series of appointments, doctors, and care over a period of time, it can become very difficult to pinpoint whether the date an injury occurred was within the prescribed three-year period. Prior case law established it is not necessary the plaintiff knows the defendant was actually responsible for the injury, only that the medical care given by the defendant may have caused the injury.

This is seen in a recent Appeals Court decision (17-P-722), in which an injured patient and her husband were prevented from pursuing their negligence and loss of consortium claims against the treating physician and hospital providing medical care following a laparoscopic sigmoid colectomy. This patient suffered from medical abdominal issues prior to this procedure, and she sought treatment in 2012 after she was diagnosed with diverticulitis. Following the colectomy, her recovery was challenged by difficulties with the abdominal fluid drainage and a slow return to gastrointestinal function. She was discharged but returned a week later after experiencing chills, cramps, and emesis. The physician re-examined her and told her he believed she had a small bowel obstruction due to internal organ adhesions.

Eventually, she was transferred to a different hospital for care by a different surgeon. Tests taken at this location showed urine was leaking from her left ureter into her pelvis, which was likely caused by the prior procedure that severed her ureter. A special tube was required to drain urine from her left kidney. In the following month, she was seen again at the second hospital with infections from the tube. She had surgery the following March to repair the severed ureter into the bladder, and this operation confirmed the ureter had been severed during the initial surgery.

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The Appeals Court recently evaluated a Massachusetts wrongful death action precluded by the medical malpractice tribunal from moving forward in state court. The deceased in Appeals Court case number 16-P-1715 was admitted to a hospital for mental health treatment following the death of her premature twins. She asked to be discharged, and she was released three days later after an evaluation by a physician, who presented her with an after-care plan. The woman died the next day in a homeless shelter due to an overdose of multiple drugs. The deceased’s aunt and personal representative of the estate filed a wrongful death lawsuit, alleging the hospital and physician were negligent in their discharge of her niece.

Like all cases involving medical malpractice, this lawsuit went before the Commonwealth’s tribunal for assessment. The estate was required to show the hospital provided health care as defined by G. L. c. 231, § 60B, the hospital failed to provide care that’s expected of the average member of the profession practicing the same type of medicine, and the failure to meet the standard of care was more likely than not what caused the death. The tribunal determined the estate’s offered proof was insufficient to show these things, and the case was dismissed after the estate failed to post the statutory bond.

The estate offered the testimony of an expert witness as evidence the hospital did not follow the standard of care in its discharge of the deceased immediately before her death. Case law requires an expert to have sufficient training, experience, education, and familiarity with the subject matter of the testimony. The tribunal cannot weigh the evidence as a fact-finder, and neither can the reviewing appellate court. Both are required to view the evidence presented by the estate in the light most favorable to them.

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