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After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. She had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.
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When a trust is established, the grantor intends to convey a benefit to a designated person or persons. As a trust is written, it is important to have experienced attorneys to help draft the trust in a way that best considers state law and the needs of the beneficiary. It can continue to be a balancing act after a trust is administered, and reforms may need to be considered.

In the Massachusetts Appeals Court case of Needham vs. Dir. of the Ofc. of Medicaid (14-P-182), the Appeals Court reviewed whether or not it was appropriate for the Superior Court to go against the agency’s denial of long-term care benefits under the Commonwealth’s Medicaid program. The Superior Court judge had previously concluded that the reformed trust must be considered during the assessment of eligibility for long-term care benefits. The Appeals Court differed, reversing the lower court’s ruling and determining that the state agency, Masshealth, is bound by federal law that prohibits the recognition of the reformation of the trust within the statutory look-back period.

The beneficiary of the trust applied for MassHealth long-term care benefits when he was 64, disclosing two trusts on his application. One trust only held the family home, which was valued at over $400,000. The reviewing agency included this trust in its accounting for eligibility, due to the terms in the trust that directed the trustee to accumulate principal and use it for the benefit of the man. The state agency concluded that the man applying for benefits was ineligible because he had monthly assets in excess of the $2,000.00 limit. The beneficiary then went to probate court to remove the provision from the trust that prevented him from obtaining benefits. The change to the trust was approved by the probate court, but the hearing officer determined that the transfer of assets during the look-back period (after the beneficiary was in a nursing facility) caused the man to remain ineligible for benefits. The Superior Court reversed the hearing officer’s determination, focusing on the reformed trust.
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Under Massachusetts law, business owners owe a duty to the patrons frequenting their stores to keep their premises reasonably safe. If a condition is present that caused a customer or guest to trip or slip and fall, the owner may be responsible for the related expenses incurred as a result of the condition. Liability exists when the owner knew or should have known about the accident-causing condition. In all personal injury actions, the victim must show that a duty existed between the at-fault party and the victim, that the at-fault party failed to keep that duty, that the breach resulted in an accident, and that damages arose.

In Finnegan vs. Kingpin Entertainment, Inc. (14-P-1293), a bowler and his wife filed suit, claiming that the bowling alley failed to uphold their duty to keep the premises safe for their guests. Specifically, the bowler and his wife alleged that the bowling alley used too much oil on the surface of the bowing lane, and this excess oil caused him to fall on the slippery surface. The bowler ruptured his hamstring, and the wife claimed she suffered a loss of consortium as a result of her husband’s injury. The trial court judge granted the defendant bowling alley’s motion for summary judgment, which argued that the couple did not have enough evidence to show that the bowling alley failed in its duty to keep the premises safe for its patrons.

In personal injury litigation, after a case is filed, information is exchanged and formal allegations may be made that claim or deny that there is enough evidence to present to a jury, or fact-finder, on the question of whether or not the defendant was negligent. In Finnegan, the evidence differed between each side on whether or not the bowling alley used excessive oil to keep the floors conditioned. The bowling alley claimed that they followed the appropriate procedure for oiling the lanes, leaving an eight-inch “buffer zone” between the foul line and the application of oil in the lanes. The plaintiffs presented evidence that included an inspection of the lanes after the accident in which “fluid drops” were observed in the “buffer zone” area.
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It can be difficult to get the money you deserve after suffering an injury from an accident. Drivers sometimes do not carry the statutorily required insurance or the insurance policy limits may not be enough coverage to cover all the medical expenses. A recent case, Boyle vs. Zurich American Ins. Co. (SJC-11791), illustrates how the pursuit of damages can become a complicated journey.

In Boyle, a man was injured in an automobile shop. One of the owners revved the engine of a truck and a tire exploded, severely lacerating and fracturing the man’s left forearm and hand. He had to undergo several surgeries, suffering from permanent scarring and partial loss of function in his left arm and hand. The injured man incurred over $100,000 in medical expenses and was unable to work for a year. Even after he went back to work, he could only work at jobs that paid less and required less skill due to his injuries. The man and his wife filed suit for the bodily injury and loss of consortium.

Following the accident, the owner of the auto shop contacted his insurance agent. The agent provided written notice to the auto shop’s insurance company, which opened a claim file and began an investigation. Three months after the accident, the injured man and his wife hired an attorney who notified the owner of the automobile that they intended to assert a claim for bodily injury. This was given to the agent and then the insurance company. Seven months later, their attorney also notified the insurance company directly of the suit, following up with a “2nd Request” notice and letter at the end of the year. A year after this, the insurance company determined the auto shop was liable, and that the injuries were covered under the policy held by the auto shop. Soon after, even though the company did not estimate the liability the auto shop might face, it closed the case.
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The Massachusetts Workers’ Compensation Act was designed to provide prompt financial relief to an injured worker or deceased worker’s family if a work-related accident occurs. Workers’ compensation claims and appeals are handled through a separate system and do not go through any of the standard civil court processes until all the administrative portions are concluded. Recently, the Appeals Court in Merchants Insurance Group vs. Spicer (14-P-798) ruled in favor of the injured worker after an insurance company attempted to stop benefits through an action in Superior Court.

The worker was seriously injured while working as a landscaper and sought workers’ compensation. His hand was dismembered by a log splitting machine. His medical bills were over $700,000, and his treatment was ongoing. The insurer for the employer providing the benefits contested the claim, but the administrative judge for the Department of Industrial Accidents (DIA) granted the injured landscaper temporary total incapacity and medical benefits, pending a formal hearing and ruling. The insurer, following an appeal of that order, also sought to have the policies rescinded in Superior Court, claiming the injured worker’s employer materially misrepresented the information provided on the applications for policies. The insurer claimed it had no duty to indemnify the employer and sought damages of the amounts already paid to the injured worker.

The injured worker and the employer did not formally object to the proceedings in Superior Court, and the judge entered a summary judgment in favor of the insurer. As part of the order, the judge ruled that the insurer did not have to pay any of the sums on the claims arising out of the injured worker’s claims. The insurer took the judgment to the DIA, which denied the insurer’s motion to dismiss the suit. As its reasoning, the administrative judge ruled that the Superior Court did not have jurisdiction, that the employee was not a party to the initial application (and alleged misrepresentation) with the insurer, that the insurer did not terminate the policy according to statute, and that as a matter of public policy the judge did not want to encourage insurers circumventing the administrative process by going to the Superior Court.
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When medical malpractice lawsuits go to trial, both sides will likely use expert witnesses to aid in the presentation of their case. In order to recover damages in any medical malpractice case, the injured party or family of the deceased person must show that the injury was the result of the doctor, hospital, or medical staff failing to uphold their duty to follow the set standards in the industry in order to provide competent medical care. Since many injured patients were already sick when they sought treatment, it becomes necessary during trial to show the fact-finder, or jury, what ‘went wrong’ beyond the original illness of the patient. This requires specialized testimony from expert witnesses.

In Kace vs. Gants (SJC-11827), the Supreme Judicial Court reviewed whether the plaintiff’s expert witness testimony was properly disclosed under the Commonwealth’s statutes. In this case, the administratrix of a deceased patient’s estate brought suit against the Emergency Room physician who treated the patient for several symptoms that included coughing, fever, malaise, and pleuritic chest pains. The defendant doctor ordered chest x-rays, which showed no abnormalities, but didn’t order an electrocardiogram or any blood tests. The patient was diagnosed with bronchitis and given an antibiotic and pain reliever, but the doctor did not consider myocarditis, a condition that begins with respiratory issues and spreads to the heart. Records reveal that the patient was likely only examined for five minutes. The patient was found dead the following morning, and the autopsy revealed that he perished from bronchitis and myocarditis.
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The Massachusetts Appeals Court recently found for an injured woman and her husband after she was sexually violated by an interpreter employed by a hospital. In Doe vs. Boston Medical Center Corp. (13-P-1998), a woman appealed the summary judgment issued by the trial court in favor of the hospital. The trial court granted the judgment, reasoning that the harm was not foreseeable and therefore the hospital carried no duty or liability to the injured woman and her affected family.

In all negligence actions, certain elements must be met in order for a suit to proceed. The at-fault party must owe a duty to the injured person, or a responsibility to behave or maintain themselves or their premises according to established standards. If the at-fault party, or defendant, fails to do so, and an injury results, they are liable for the damages associated with that injury. In considering whether a duty is owed, certain harms must be considered “foreseeable.” For example, if a hole forms in front of an entranceway from construction or weather in front of a storefront, it is foreseeable that someone entering the store could fall into the hole and harm themselves. It is therefore the store owner’s or manager’s responsibility to keep the premises safe and fill the hole.

In Doe, the hospital had performed a background check on the interpreter, which came back with no prior criminal history. This fact weighed heavily in the trial judge’s conclusion that the interpreter’s assault was not foreseeable, and the hospital could not be held liable for his actions. The woman was inappropriately touched by the interpreter after she was checked by several doctors and staff who exited the room, leaving her alone in the hospital bed attached to medical equipment. The interpreter also left the room with the staff but stayed behind outside her door. Since the door was unlocked, the interpreter came back into the room and claimed he needed to perform a physical exam, touching her abdomen and vagina. He left but stayed outside the room again until a nurse found him and made him leave. Soon after he left, another sexual assault was reported by a different patient in a different area of the hospital, indicating that the same interpreter was involved.
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When an injury occurs in the workplace, financial concerns of how to pay for the medical bills and daily expenses quickly appear. When an injury takes an employee away from work for an extended period of time, maximizing the amount of workers’ compensation is in the victim’s and victim’s family’s best interest. A pair of recent appellate cases, Joseph F. Driscoll’s Case (14-P-776) and Driscoll v. Contributory Retirement Appeal Board (14-P-420) analyzed whether a city employee’s injury was considered ongoing, and whether or not he was entitled to accidental retirement benefits.

The injured employee hurt his back when he jumped into a garbage truck while working for the city’s highway department. He sought benefits from his employer, which was self-insured, and was paid weekly incapacity benefits for two months immediately following the injury. The injured employee also sought ongoing workers’ compensation benefits and accidental retirement benefits. The ongoing workers’ compensation benefits were initially denied by the self-insurer and the Dept. of Industrial Accidents (DIA). The ALJ at the DIA did grant temporary total incapacitation benefits, extending from the date of the accident to approximately nine months afterward. The Contributory Retirement Appeal Board (CRAB) and the Division of Law Appeals (DALA) both denied the injured employee’s request for accidental disability retirement benefits. The injured employee, seeking to maximize the benefits available, appealed both decisions.
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When injuries happen, the costs can quickly add up. Negotiating and litigating for the maximum amount of compensation possible is the responsibility of your Massachusetts personal injury attorney. Payments, however, can get complicated legally as parties seek money from insurance companies or partial responsibility and liability from other entities. In U.S. Liability Ins. Co. v. Benchmark Construction Services, Inc. (No. 14-1832), the court reversed the decision of the U.S. District Court in favor of the insurance company, concluding that the vague indemnity clause should be read in favor of the insured, which is the general contractor in this case.

The case stems from a home renovation accident. The homeowners hired a general contractor, who then hired an architect to design the renovation plans. This architect hired a painting company to paint one of the interior walls. An employee of the company injured herself after falling off a ladder positioned on top of scaffolding. The injured painting employee sued the general contractor for damages, alleging that they not only owed her a duty of care, but that they were negligent in their placement and maintenance of the ladder and scaffolding. The general contractor looked to their insurance company to indemnify them, but the insurance company refused, claiming that they did not have a duty to defend them in a claim involving a contractor, or non-employee, based on its exclusion clause found in the policy.

The Circuit Court pointed out that the term “contractor” was not defined under the policy, but the policy was to cover any accidents involving “bodily injury.” The District Court had previously determined that a contractor was “anyone who held a contract,” so even though she was an employee of the painting company hired by the sub-contracted designer, she fell under the exclusion. The Circuit Court felt otherwise and concluded that she was not someone who worked for the insured and could be reasonably considered to be the type of injured person the policy was designed to cover.
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When a terrible injury occurs, whether from a car crash or a work site accident, pinpointing the date of injury can be an easy exercise. Some injuries are not always as clear. When you file a medical malpractice action in Massachusetts, you are bound by the statute of limitations, which requires medical malpractice injury claims to be brought forth within three years of the date of the injury, or the date you should have known about the injury. The latter part of the requirement allows for the delayed discovery of injuries that may not be apparent on the date of the accident or injury-causing event.

In the Appeals Court case of Parr v. Rosenthal (13-P-1150), the court extended existing case law, which now allows the statute of limitations to toll, or pause, when there is ongoing treatment performed on an injury. In Parr, the parents of a small child filed suit against the surgical physician. The child was born with a tumor in his right leg that impeded nerves and blood vessels. When the child was eight, he had surgery to have the lesion removed, but the doctor performing that surgery was unable to remove all of it. The boy continued to see other doctors who were all part of a sarcoma group and was later referred to another to perform a specialized procedure. During this surgery, a burn formed above the tumor site, causing complications during the surgery and immediately after the procedure. The parents of the child were advised it was a “superficial burn” and that the child would be able to heal quickly.

The burn did not heal and caused the boy’s health to become very unstable, despite extended hospital visits, in-home physical therapy, and a visiting nurse providing him care at home. Eventually, the boy’s leg had to be amputated below the knee. The lawsuit was filed within three years of the amputation, but more than three years after the second surgery. At trial, the jury was not provided with an instruction that allowed for the period of continuing care to be considered when looking at whether or not the injury occurred within the three-year statute of limitations. The jury found for the defendant, and the parents suing on behalf of their child appealed.
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