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In some personal injury actions, an injured party must provide proof prior to formal litigation. Parties injured by medical negligence must submit proof to a medical malpractice tribunal demonstrating that a health provider defined in Massachusetts G. L. c. 231, § 60B did not conform to good medical practice, resulting in damages. This is a prelude, or truncated version, of what must be done in personal injury civil litigation to successfully obtain damages.

The injured party in this Massachusetts medical malpractice case (16-p-1626) had a robotic-assisted laparoscopic radical prostatectomy in 2012 but continued to experience pain, infection, incontinence, and other problems. After two years, the injured patient sought treatment. An examination showed the presence of a large bladder stone. The injured patient underwent another procedure to remove the stone, in which a Wek Hem-o-Lok clip was discovered inside the stone. Hem-o-Lok clips were used in the prostatectomy in 2012.  The injured person then filed suit, alleging medical malpractice and following the procedural requirement of presenting the necessary proof before the medical tribunal.

The injured patient provided the tribunal with medical records and an opinion letter from a board-certified urologist that stated the acceptable standard of care for a qualified urologist to use during a robotic-assisted radical prostatectomy mandated the physician to apply the clip properly, know when a clip was not locked properly or loose, and actively search, find, and fix any clips that loosened during the procedure. The injured person’s expert opined the clip fell loose during the prostatectomy, traveled to the bladder when the bladder neck was open during the surgery, and was left inside the patient as they were closing him up. The doctor concluded the defendant providers violated the applicable standard of care by failing to properly apply the clip, appreciate and recognize the loose clip, actively search for the clip, find the clip in the bladder, and retrieve it prior to closure. The doctor stated this failure resulted in the stone’s formation, pain, infection, and the otherwise unnecessary surgery to remove the clip. Despite this testimony, the tribunal dismissed the claim. The injured person appealed.

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In Massachusetts, even if you successfully settle or litigate a negligence action and are awarded damages, receiving the payment of damages can become challenging. This is demonstrated in a recent Massachusetts car accident decision (16-P-1623) that upheld a settlement agreement made between the owners of a farm, the driver of a car, and her husband. The driver was seriously injured after her vehicle collided with two cows from the defendants’ farm that had wandered into the road. The injured woman and her husband filed suit against the owners, which eventually led to mediation. A settlement agreement was reached between the injured couple and the defendant husband. The defendant wife was not present and did not sign the agreement afterward.

A settlement agreement is a contract between two or more parties to settle the pending litigation and release the defendant from future claims. A court ordering the enforcement of an agreement must be confident the parties actually came to an agreement over the essential terms of the settlement. Issues over minor, collateral matters are not detrimental to enforcement.  For example, even if there is no deadline specified for when the obligation is to begin, the agreement will remain intact, and a “reasonable” date can be used if it does not change the essence of the contract. Once a settlement agreement is reached, the agreement is reported to the court, which will then decide whether to enter an order to formalize the agreement. Once this occurs, unless there is a determination that the agreement was either unenforceable or materially breached, the parties must follow the terms within the document or face civil penalties for failing to uphold their obligation.

In this lawsuit, the defendants failed to perform their obligations under the agreement. The injured woman and her husband filed a motion requesting the trial court to enforce the agreement. The defendants were given proper notice but failed to attend the hearing to answer or contest the agreement. The judge signed an order formally adopting the agreement, entering a judgment against both defendants for $40,000 to the plaintiffs and $4,364.28 for attorney’s costs and fees, to be paid according to a payment schedule. The agreement also allowed the defendants to finalize a judgment against an unrelated party and for the plaintiffs to pursue the $40,000 from the same unrelated party.

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In Massachusetts personal injury cases, seeking damages for lost wages is often necessary to make an injured party whole. Much time is often needed to recover from a serious injury, and an injured person may not have access to funds during this period. Workers’ compensation provides money to cover lost wages during the recovery period, but disputes can still occur over the appropriate amount to be paid. Having experienced counsel at your side, whether it is a workers’ compensation claim or personal injury litigation, can help maximize the lost wage damages you deserve.

The Appeals Court recently assessed an award of lost wages in a Massachusetts labor action before the Employment Relations Board. The plaintiff had been laid off by a local highway department. The plaintiff sought assistance from his union with the lay off, but they failed to file a grievance for him. A hearing was held with the Dept. of Labor Relations over this failure, and the hearing officer found the union to have violated G. L. c. 150E, § 10(b)(1). This was affirmed by the board, which then ordered the union to pay for the loss of compensation he suffered as a result of its failure to process his grievance about the timing of his layoff. The Board specifically directed the union to pay him 34 days’ worth of lost wages plus interest, as specified in G. L. c. 231, § 6I. The board did not agree with the plaintiff’s request for reinstatement and full back pay, since no one would have known the outcome of the hearing had the union assisted in avoiding the lay off. This was particularly true because the town had voted to reduce the highway department’s budget.

Massachusetts G. L. c. 30A, § 14(7) directs the Appeals Court to be very deferential to the decision of the administrative agency, giving weight to the experience, competence, and technical and specialized knowledge of the agency. The appellate court must affirm the decision unless there was a violation of a constitutional provision, an excess of statutory authority or jurisdiction, an error of law, an unlawful procedure, a finding unsupported by substantial evidence, unwarranted findings of fact, or an abuse of discretion. With this level of deference, it is difficult for the appealing party to show the interpretation and application of the law was not rational.

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A Massachusetts workers’ compensation reviewing board decision earlier this year looked at whether subsequent insurers should be responsible for helping to pay the benefits awarded to a roofer injured over the course of 30+ years of work. The roofer installed duct work and metal roofing since 1970. He carried aluminum weighing up to 60 pounds and kneeled often. He experienced his first knee injury in 1981 and was given workers’ compensation in that state. He underwent arthroscopic surgery and returned to work without any further injuries until 1998.

In 1998, his knee began locking and eventually “popped” while working on a roof, causing excruciating pain. A second arthroscopic surgery was needed, and he received workers’ compensation benefits for three to four months and returned to full duty work once again. No additional medical treatment was needed after his return to work for an additional 10 years. In 2008, he was diagnosed with arthritis in his left knee.

The injured employee kept working but experienced pain when he had to climb or kneel. He later described his pain as the same whether it was “climbing ladders at work or climbing stairs at home.” To relieve the pain, he received three cortisone shots to his left knee. The injured employee testified that they did not help much, and he kept working without additional treatment until three years later. Shots were tried again but eventually discontinued due to the employee’s allergy to the injections. The employee kept working until he was laid off, but he did not pursue any other work, since he had to undergo total knee replacement surgery.

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Earlier this year, the Social Security Administration issued a Policy Interpretation Ruling for claimants seeking reconsideration of a decision made in the review process. The agency specifically addressed how the federal regulations for reopening a claim should be used when a decision hinges on a federal law that is later determined to be unconstitutional. The need for this Policy Interpretation came about following two Supreme Court decisions, Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). It may have an impact on Massachusetts Social Security claimants.

The two main programs of the Social Security Administration (SSA) are Title II and Title XVI. Title II benefits are ones from the Social Security Disability Insurance program, paid to individuals insured under the Social Security Act based on their payments into the system through the tax on their earnings. These payments can also be made to a particular set of disabled dependents. Title XVI benefits are better known as SSI, or Supplemental Security Income, and they are paid to disabled people who have limited income and resources. Much of the focus on whether an individual qualifies for Social Security benefits centers around whether or not she or he meets the medical criteria to be considered disabled. However, a claimant must also fall into the categories set by the SSA. The two Supreme Court cases above allow a greater amount of individuals to qualify as a disabled widow or widower, or as a dependent of a deceased insured parent.

Normally, if the claimant objects to the decision or determination of the agency, she or he can lose the right to another review if the appeal is not made within the listed time period. The decision or determination is then final. Exceptions to finality exist, and cases may be reopened under limited circumstances. The cases can be reopened for “good cause” at the agency’s initiative or by request of the party for revision. Agency regulations guide the grounds for reopening and whether or not there are deadlines to follow.

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The state allows employees to receive Massachusetts workers’ compensation benefits for both physical and psychological injuries. An employee is considered to be injured if the disability was predominantly caused by an accident that occurred while performing tasks for the employer. An injured employee can also recover for aggravated mental injuries that preceded the workplace accident if the workplace accident is a major, but not necessarily predominant, cause of the disability or need for treatment. In this instance, the injured employee does not have to provide as much medical proof to show she or he qualifies for benefits.

A recent Reviewing Board decision (Board No. 020182-15) looks at the difference between the burdens of proof. The self-insurer/employer sought to reverse a ruling awarding the employee total incapacity benefits. The employer argued several errors were made by the administrative judge. The board declined to dismiss the employee’s claim but did recommit the case for additional findings of fact.

In its decision, the board felt the nature of the dispute required a deeper scrutiny of the facts. The employee was a chaplain working at a hospital when a resident lunged from his wheelchair and hit the chaplain in the face. The employee maintained he sought workers’ compensation for his physical injury sustained from the incident as well as benefits for his pre-existing mental health issues. On appeal, the employer argued the employee was only attempting to seek benefits for a pure mental or emotional injury. The record indicated otherwise. The board noted the judge seemed to view the case as the injured employee presented it – a physical injury resulting in emotional sequela, or an aggravation of his previous injury. The employer felt it was deprived of due process by the judge’s treatment of the claim by allowing the lower burden of proof to prevail. The injured employee countered that there was no stipulation to the heightened standard of medical proof regarding causation.

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After a Massachusetts car accident, the costs can add up quickly. Even if the driver causing the accident has auto insurance, his policy limits can fall woefully short of covering medical bills stemming from the accident. Drivers and policy holders can then look to their own auto insurance policy for uninsured/underinsured coverage to make up the difference. Whether paying for an accident caused by an insured or paying for an injured party, insurers are ultimately interested in minimizing their costs and payouts. To mitigate this, the Commonwealth’s General Laws require an insurer to follow fair settlement practices. If an insurer fails to do so, the injured person can file suit, alleging the insurer committed an Unfair Claim Settlement Practice. A recent Appeals Court decision (16-P-509) addresses this type of lawsuit by assessing what an injured insured must produce for this claim to move forward against an auto insurer.

An injured Massachusetts resident filed suit against her auto insurance company following an accident with another vehicle. Liability was undisputed, and the injured woman accepted the $25,000 limit of that driver’s policy as a settlement of her claim. The injured woman also filed an underinsurance claim with her auto insurer, but no settlement was offered by her insurer. The injured driver ultimately filed suit to compel her insurer to arbitrate the dispute about the amount of damages she suffered from the accident, in addition to a claim for unfair settlement practices, based on the absence of any settlement offer. The injured woman was allowed to go to arbitration regarding the accident-related damages, which were assessed to be $50,000. The amount was confirmed by the presiding judge, who allowed the injured person to pursue the unfair settlement practices claim.

The trial court judge made several findings at the jury-waived trial, pointing out that the injured person offered a lot of proof regarding the damages related to the injury, but no evidence about the insurer’s investigation, nor evidence about which type of settlement negotiations occurred between herself and her insurer. The trial court found the woman also failed to show which damages she suffered as a result of the insurer’s failure to offer a prompt settlement of the claim. The injured woman argued the judge erred by allowing the insurer’s motion to exclude three of her witnesses, who were all the defendant’s employees. The Appeals Court found no abuse of discretion and affirmed the trial court’s refusal, based on the injured person’s late disclosure of witnesses.

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Massachusetts statutes guide the responsibilities and expectations of a trustee as well as the parts of the process the trustee must use for distribution. A trustee has broad powers over the administration of an estate. If the trustee mishandles her or his duties, the beneficiaries can be shortchanged. A recent Massachusetts estate planning decision (16-P-1314) deals with a depleted trust account, reviewing when a trustee commits a breach of trust, how much discretion they have, the compensation they are entitled to receive, and how and when they should be removed.

In this case, the father of both the plaintiff and one of the defendants in the lawsuit was the settlor of the trust, executed in February 1999. His estate was divided into four equal shares, with one share distributed through a separate trust to the plaintiff daughter and two of her three children. The rest of the shares were to be distributed to the remaining beneficiaries “free of all trusts.” The trustees administered those assets after the settlor’s death in 2001, leaving the daughter and her designated children as the sole remaining beneficiaries by 2008. However, no distributions were made to the plaintiff or her children until ordered by the judge in 2016. In the interim, the trustees used assets designated to the plaintiffs to pay the storage fees for items belonging to the plaintiff daughter found in the settlor’s home. The plaintiff daughter was made aware that her items were in a storage facility and that it was her responsibility to move them, but the trustee refused to give her the address of the storage facility.

Nothing further was said of the property until 2008, when the same trustee sent a letter advising she could not “cherry pick” and must accept the items altogether. Once more, the trustee refused to give her the location of the storage unit. Two similar letters were sent out after this, but nothing was addressed until the daughter filed the underlying case in 2013. By then, $50,000 of the assets out of the plaintiffs’ trust had been used to pay the storage fee over the 15-year span. Trust assets were also used to pay trustees’ fees, attorneys’ fees, and litigation expenses. The balance of the trust was reduced from $542,042 to $463,719, absent any actual distribution by the time the lawsuit was filed. During the litigation, the defendants continued to use the trust’s assets, reducing the assets to $250,000.

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Whether state court or federal court, the civil justice system relies upon due process to ensure all parties are fairly heard and considered. Part of due process is the statute of limitations, which provides deadlines for parties for many parts of the litigation, including filing, responding, requesting evidence, and providing evidence. If deadlines are missed, the party missing the deadline can potentially be precluded from either moving forward with the litigation as the plaintiff, or maintaining an affirmative defense as the defendant. The First Circuit Court of Appeals addressed the effect of a missed deadline in a Massachusetts Social Security Disability appeal for benefits in a recent case (No. 16-2188).

The SSI claimant filed for Social Security Disability Insurance benefits (SSDI) in 2012, which were denied three months later and on reconsideration three months after that. A hearing was held 14 months later, ultimately concluding in an unfavorable decision for the claimant. The ALJ found he was not disabled and was ineligible for SSDI. The claimant then asked the agency’s Appeals Council to review the administrative law judge’s determination. The council denied the request, finalizing the ALJ’s denial of benefits.

The council’s denial included a notice that the claimant has 60 days to file a civil action or ask a federal court for a review. The notice specifically stated that the 60 days start the day after the claimant receives the letter and that it is assumed the letter was received within five days after the date stamped on the Notice, unless the claimant can show otherwise. The notice also advises that if the claimant is unable to file for a review within 60 days, an extension is available as long as there is a good reason for waiting more than 60 days to ask for a court review. This request for an extension must be in writing.

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Massachusetts workers’ compensation offers benefits for both physical and psychological injuries an employee suffers after an accident. By their nature, physical injuries are easier to connect to a workplace accident. Detailed proof and testimony must be offered by an injured person to show the workplace accident was the major factor in the psychological injury. A recent Massachusetts workers’ compensation action (Bd. No. 031456-05) offers a glimpse into which proof can be offered in a successful bid for workers’ compensation for a psychiatric injury.

In this lawsuit, the Reviewing Board assessed whether or not an employee should have been awarded both §§ 34 and 34A benefits. The employee suffered multiple fractures in her left foot after she slipped and fell in an industrial accident. Her employer agreed the foot injury was caused by a workplace accident and agreed to cover the initial costs related to her psychiatric issues stemming from the injury. The employee exhausted her § 35 and § 34 benefits after a fusion in 2006, followed by another in 2012 and a third in 2013. The second surgery seemed to provide some relief to her condition but did not resolve her pain or her difficulties walking on uneven surfaces. The third surgery did not do much to alleviate pain in her heel or the pain that had since developed in her knee. Since the accident, the injured person could not leave the house on cold days because it took her foot hours to feel warm, which then resulted in additional psychological tension. Because of the constant pain and inability to perform typical daily functions, the employee often felt sad, cried, and had fits of anger.

At the hearing, the administrative judge found the employee was permanently and totally disabled due to both the orthopedic and the psychological conditions. The employee was awarded § 34 and § 34A permanent and total incapacity benefits. The employer/self-insurer appealed the ruling, alleging the psychiatric disability should not have been tried at the hearing, since the issue had not been raised at the pre-trial conference. The Reviewing Board disagreed, pointing to the submissions and transcript of discussions before the hearing.

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