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In Robert Amaral’s Case (15-P-860), the Appeals Court of Massachusetts reviewed whether or not it was appropriate for an administrative hearing judge to terminate a worker’s total weekly incapacity benefits. The worker injured his shoulder and lower back while helping restrain two juveniles at the Department of Youth Services. He originally received both total and partial incapacity benefits, but his employer, a self-insurer, filed to discontinue the total incapacity benefits.

The employer argued that the injured worker was no longer entitled to weekly benefits because the injury sustained at work was not a major cause of his continued disability. The administrative judge relied upon the employer’s medical expert witness, who opined that his disability mostly stemmed from his pre-existing spinal degeneration and obesity.

In all workers’ compensation cases, the judge is allowed to weigh the medical evidence presented in order to determine whether the injuries sustained by the worker were actually from the workplace and not aggravated by conditions preceding the accident or aggravated by circumstances outside of and unrelated to work. In this case, the injured worker appealed the judge’s ruling and the affirmation of the Reviewing Board, arguing that the judge had abused her discretion by adopting the medical opinion of the employer’s expert.
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There are many documents you can and should use for your Massachusetts estate plan. Medical care considerations can become especially complicated as you weigh the resources available to help cover the cost. The recent Massachusetts Appeals Court case of Heyn vs. Dir. of the Ofc. of Medicaid (15-P-166) reinforces a grantor’s ability to create an irrevocable trust, which could then make him or her eligible for Medicaid benefits.

In this case, the grantor, now deceased, created a self-settled irrevocable inter vivos trust, transferring the title to her home to the trust, while retaining a life estate interest that would not make her ineligible for Medicaid benefits. The grantor moved into a skilled nursing facility and applied for Masshealth benefits to pay for the cost of her care, which were originally approved. After a little over a year at the nursing facility, she was notified that her benefits were terminated based on the agency’s determination that the home held by the trust should be considered a countable asset, rendering her ineligible for benefits.

The grantor of the estate appealed, but she died before a decision was issued upholding the termination of benefits. The hearing officer determined that the trust allowed the trustee to sell the assets and invest the proceeds of the sale in other forms of investments, like an annuity. The officer reasoned that annuity payments can create income for the grantor, which should be considered a “countable asset” for determining Medicaid/Masshealth benefits eligibility. The Superior Court upheld the hearing officer’s ruling, and the case went on to the Appeals Court of Massachusetts.
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When an accident occurs in Massachusetts, it is not always immediately clear who should be held accountable for the injuries. Sometimes multiple parties are jointly liable, and other times one party may initially appear liable before being absolved through the litigation process or trial verdict. For example, if someone is injured by tripping on an object in a shopping mall, there may be liability due to the negligence of an employee of one particular store. This may be shared by the owner of the entire premises because a separate maintenance employee failed to clear the obstruction. Juries often divide liability, as well as the percentage of damages paid to the injured party, so it is important to file suit against all possible responsible entities.

In any situation, there may be additional relevant statutes that limit the amount of time an injured person has to provide notice of her or his intent to sue. The Appeals Court of Massachusetts recently issued an opinion, Landry vs. Mass. Port Auth. (15-P-253), which reviewed a delivery man’s action against two municipal entities for injuries he sustained at the regional airport. In this suit, the defendants jointly filed for dismissal, pointing to G. L. c. 84, § 18, which requires notice to file suit against a municipal entity within 30 days, if the injury happened in a right of way.

The deliveryman had been making deliveries of cleaned uniforms to the airport for several years, often with airport employees escorting him through the gates to his drop-off point. In the year before the accident, this procedure changed, and he was directed to park his truck in a certain location and walk through a remote-controlled gate to his drop-off point. On the date of his injury, the gate was partially opened but abruptly stopped after opening 3-4 feet. After waiting for some time, without further instructions from someone controlling the remote, he proceeded through the opening with the uniforms over his shoulder. He did not have much clearance to make it through, since a steel bar that was part of the gate was also in the way. The gate began to close while he was walking, causing him to suffer a fractured sternum. The man could not work for two months. The delivery man later learned from airport employees that this mechanized gate had been malfunctioning for a while.
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A named executor of a will holds a lot of power and responsibility over a Massachusetts estate. An executor’s tasks can go beyond distributing the testator’s assets. He or she can also manage trust funds or file and defend lawsuits on behalf of the estate. A recent appellate court case, In The Matter of the Estate of Elizabeth Lawry (15-P-374), looks at the obligations an executor has to the estate and its heirs. The executor appealed a ruling made at trial, in which the court ordered the executor to return $20,000 of his $30,000 fee to the estate, as well as pay $7,500 in attorneys’ fees.

Under a Massachusetts law, G.L. C. 190b, § 3-720, a personal representative of an estate who defends or prosecutes a proceeding in good faith is entitled to receive the necessary expenses and disbursements from the estate, including reasonable attorneys’ fees, regardless of whether or not the action is successful. However, a personal representative is also expected to act in good faith. Without this, the entitlement to attorneys’ fees becomes void. At trial, the judge looked at the overall picture of the executor’s performance of his duties. The judge ultimately did not feel that the executor acted in good faith because he did not record the time he spent settling the estate consistently with due diligence, charged a higher fee because the beneficiaries did not get along, made several mistakes while handling the estate, and caused unnecessary delays with the distribution of the assets.

One of the duties mentioned by the trial court in its order awarding the heirs attorneys’ fees was the duty to settle the estate expeditiously and efficiently. The court also looked at the excessive fee the executor paid himself. While an executor is entitled to attorneys’ fees for litigation, the court pointed out it was the executor’s own conduct that led to the litigation, so it was only fair that he pay the expenses of the litigation rather than the estate. The Court of Appeals agreed with this analysis and did not find any abuse of discretion on behalf of the trial court judge. The reduction of the executor’s fees and the award of the heirs’ attorneys’ fees was upheld.
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When a worker is injured, it is not always clear whether his or her current medical conditions and injuries happened because of the workplace or from life outside the workplace. To determine whether or not certain benefits should apply, administrative judges consider medical evidence and expert testimony from treating and reviewing physicians. In Bennett vs. Northeastern University (Board No. 038550-08), a self-insurer/employer appealed a decision in favor of an HVAC technician who was awarded temporary total incapacity benefits, followed by permanent and total incapacity benefits.

The injured employee worked as an HVAC foreman and later as an HVAC technician at a university. The employee originally claimed he suffered from a pulmonary injury arising out of his job, due to exposure to chemicals used by other workers stripping the floors in a locker room, as well as exposure to chemicals, solvents, dust, and fumes he was naturally exposed to in his own work as an HVAC technician. The judge at the original hearing heard from the injured employee’s primary care physician and treating pulmonologists. The judge also heard from the independent medical examiner used in accordance with these proceedings.

After hearing the testimony and reviewing the evidence, the judge found that the employee required medical treatment for breathing issues as a result of his exposure to the stripping materials. The judge noted that these substances aggravated a pre-existing breathing condition and that he will likely be unable to perform any HVAC work again in the future. Since the employer did not raise any issues with causality, the judge relied on the employee’s witnesses, since he only needed to prove “as is” causation. The employer objected to this assessment, arguing that the employee did not prove the employer’s liability for a work-related injury, that the condition was caused by the workplace, nor that he was truly disabled and incapacitated. The employer pointed to the failure of the judge to resolve factual conflicts in the testimony related to the employee’s proximity to the location where the floor stripping was performed, the day the employee fell ill, and the day the employee left work.
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Injured construction workers likely know they are entitled to workers’ compensation benefits from their immediate employer. What they may not realize is the possibility to receive damages from a general contractor through a negligence suit. As discussed previously on this blog, workers’ compensation, created through statute, is available for employees to quickly receive needed funds for care and lost wages, and for employers to avoid the cost of suit and lost time.

Construction and renovation projects, however, often involve several different parties on site. One of those parties can cause an injury. Unlike workers’ compensation, which does not require negligence to be shown, a general contractor’s failed duty to the injured worker must be shown. Massachusetts case law has established that a general contractor can assume a duty of care for a sub-contractor’s safety if they retain control of her or his work. This must go further than the general right to inspect, make recommendations, or set schedules. Control, in this situation, must be the right to control the methods by which the work is performed.

In Yepes vs. C.H. Newton Builders, Inc. (15-P-375), the injured worker appealed a summary judgment entered in favor of the general contractor, where the judge discounted two affidavits submitted by co-workers, relaying the role of the general contractor on the job site. The injured worker was part of the subcontractor’s team who was helping to strip and refinish the wood work in a home. The worker fell off scaffolding and fractured his ankle. He filed suit against the contractor, claiming that the general contractor failed to keep the premises safe. As part of his suit, the injured worker included two affidavits submitted by coworkers, which relayed that the general contractor was in charge of the worksite and all the trades, giving instructions as to how the work should be performed.
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In a recent decision, Insurance Company of the State of Pennsylvania vs. Great Northern Ins. Co. (SJC-11897), the Massachusetts Supreme Judicial Court clarified what happens if there is more than one workers’ compensation insurance policy that covers a workplace injury. In this case, a Massachusetts employee was catastrophically injured in an automobile accident while working abroad on a business trip. The employer had purchased different workers’ compensation insurance plans from two different insurers. However, the employer chose to give notice of the accident to only one of the insurers, and it initially told the other insurer nothing of the accident. The first insurer eventually learned that there was a second insurer and sent a letter to the second insurer, giving notice about the claim and requesting contribution. The second insurer declined, pointing to the employer that advised them that only the first insurer was going to be used.

This case went through the federal court system for a time, which ultimately sent the question to the commonwealth’s appellate system, asking whether or not the employer can choose the insurer it wishes to use. The Supreme Judicial Court answered “no,” stating that the insurer paying for the loss has a right to equitable contribution from the co-insurer to make sure that they cover their share of the loss. The court felt that the employer cannot prevent the insurer covering the costs from seeking equitable contribution.

In its analysis, the court looked at case law that shapes the doctrine of equitable contribution. Over time, courts have determined that when multiple insurers provide coverage for the loss of an insured, any insurer that pays more than its fair share of the costs of the defense and indemnity can seek a proportionate contribution from the other co-insurers. This doctrine applies to insurers that share the same type of obligations on the same risk. Case law also states that the insurance companies do not have to have agreements with each other for this obligation to exist. The right to equitable contribution exists solely with the insurer, and it does not rely upon the insured.
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After a family member dies, the settlement of the estate often accompanies the natural process of grieving. It can be difficult to accept the choices the testator made during her or his lifetime and how those choices echo in their last will and testament. Sometimes, questions are raised as to whether or not those choices were actually made by the testator, and heirs may question the will in probate court. The law, however, created a high bar for those who choose to object. Massachusetts law states that a person is capable of creating a will if he or she is free from delusion, understands the purpose of the will, and understands the nature of his or her property.

In a Massachusetts appeals court case, In The Matter Of The Estate Of William E. Weaver (15-P-714), the appellate court declined to uphold the objections of the children to the will of their father. The plaintiffs protesting the testator’s will were children of his first marriage, and they alleged that his second wife and her daughter exerted an undue influence over their father’s will. In the affidavit submitted, the second wife was portrayed as an enabler of their father’s drug abuse and alcoholism. The second wife actually predeceased their father after they created reciprocal wills that left their estates to each other.

The father had a good relationship with the children of his first marriage, but he had difficulties with the daughter of the second wife. His relationship with the step-daughter deteriorated after her mother’s death, especially after he learned she had stolen money from him. The children alleged that their father told them he was aware of the contents of his will, but that his second wife and her daughter pressured him into leaving his estate to her daughter if she died before her. The children claimed the father expressed his desire to leave his estate to his children.
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In urban environments, many modes of transportation are used to get from one place to another. Roadways are often shared by pedestrians, different sizes of vehicles, and bicycles. However, pedestrians and cyclists are the ones who have the greatest risk of a catastrophic injury if they are struck by a distracted or generally careless driver. In the event of such an accident, it is important to have experienced counsel at your side so that all options of financial and legal relief are available to you.

In Basiony v. City of Boston (15-P-98), the Appeals Court of Massachusetts reviewed a jury verdict awarding damages to a bicyclist struck by a police officer going the wrong way down a one-way street. The collision caused a physical injury to the man and property damage to the bike. The city appealed the trial court’s refusal to grant a new trial, arguing that the judge should have granted its requests for evidentiary rulings made throughout the trial.

The city objected during trial to the testimony of the patrol supervisor who was working during the officer’s shift. The supervisor conducted an investigation of the accident and wrote a report of his findings. The judge did not allow the introduction of the report itself but allowed the supervisor to provide testimony, overruling the objections of the city. The city felt this was improper, but the trial court and the Appeals Court disagreed. The court did not find any error regarding the testimony and pointed to the long history of broad discretion granted to trial judges. The court felt the supervisor was an appropriate witness to the accident, since he arrived on the scene soon after it occurred. The court also felt it was reasonable for him to testify about police department rules that dictate when police cruisers are allowed to disregard traffic signs and signals in an emergency.
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The Massachusetts Appeals Court reviewed an appeal by an ex-husband to quiet title on a mortgage taken out by his ex-wife in 2002 for property that they co-owned. In Poulos vs. Financial Freedom (14-P-1287), the husband appealed, seeking to reverse a summary judgment issued in favor of the lending institution and the family trust created by his deceased ex-wife. The husband wanted the mortgage granted to the lending institution to be declared void because he felt that it encumbered his share of the property rather than just the 50% of the property originally held by the wife as part of their 1987 settlement agreement, now owned as part of a trust she established prior to her death.

The court affirmed the summary judgment and discussed the effects of the settlement agreement, or the lack thereof, on their respective interests in the property after the escrow period in their separation agreement. While there was language in the property settlement agreement that the parties were not to encumber the property with a mortgage during the escrow period, nothing in the agreement prevented the parties from seeking mortgages or other potential encumbrances after this period ended.

The court did agree that the ex-husband initially had standing to pursue this course of action with the lending institution’s original position that the mortgage encumbered all of the property, rather than just the decedent’s and trust’s interest in it. The reverse mortgage documents clearly indicated that the institution believed that the mortgage the ex-wife granted covered 100% of the property. The ex-wife represented in the paperwork that she owned the entirety of the property and all the rights to mortgage, grant, and convey it, failing to mention her ex-husband’s interest. However, during the course of litigation, the lending institution eventually conceded that the mortgage could only cover the wife’s half of the property.
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