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Many obstacles arise in a negligence lawsuit, and defendants will try to use all of them to prevent or minimize liability. Injured parties face evidentiary challenges if witnesses are hard to locate, or physical evidence is compromised. Procedural hurdles also exist, from the timing of the filing to the way in which pleadings are written. In a recent decision, the federal First Circuit Court of Appeal addressed a summary judgment granted in favor of the defendants, based on issues with the injured person’s statement of facts and submitted reports.

The plaintiff was injured in a vehicle collision in 2014. He filed suit against the driver of the tractor trailer and the company that owned the trailer and hired the driver. The injured person alleged the trailer caused a rear-end collision, causing him to lose control of his own vehicle and strike a median. 

Upon review, the magistrate judge recommended granting the defendants’ motions to strike the plaintiff’s purported set of facts in his own motion and the opposition to the defendants’ motion. The injured man had included two expert reports attached as exhibits, which were also excluded. The grounds for this recommendation were based on the injured man’s failure to comply with Local Rule 56.1, which requires a filed opposition to motions for summary judgment to be a concise statement of material facts of record. The District Judge adopted the Magistrate Judge’s recommendations and report, entering summary judgment in favor of the defendants. The injured man appealed.

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The Reviewing Board recently issued a decision assessing the earning capacity of an injured teacher who was awarded § 35 partial incapacity benefits, calculated with two separate earning capacities. In this Massachusetts workers’ compensation case, an elementary school teacher suffered from a strain in her shoulder after years of reaching to place supplies and drawings in an overhead bin. This teacher used the same arm to demonstrate techniques and painting at an easel. She also used this arm while manipulating the paper cutter’s heavy blade. These repeated motions caused her to develop worsening pain in the section of her arm above the elbow every time she used the cutter.

On one occasion in 2009, she felt a sharp pain in the problematic arm while using the cutter, but she failed to report the incident immediately after it occurred. She also did not mention her belief that she developed a work-related shoulder condition. The teacher continued to work until her retirement in May 2010. In September 2010, she filed an incident report for the 2009 pain, as well as the general shoulder problem related to her work.

The injured teacher did tell her primary care physician about the pain in November 2009. She was referred to an orthopedic physician and given a diagnosis of rotator cuff tendinitis. The injured teacher began physical therapy, which ended in January 2010. In August 2010, she had an MRI performed on the affected shoulder. Eventually, she sought care from a different orthopedic surgeon, who ordered a cervical MRI in February 2012, which revealed numerous problems with her spinal discs C4 through C6, predominantly on her right side. This physician continued to treat her, prescribing both prescription and over-the-counter medications.

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In all civil lawsuits, parties are obligated to follow the deadlines set by the court. Missing a deadline can have serious consequences, resulting in either the dismissal of your case if you’re the plaintiff or a judgment entered in favor of the plaintiff if you’re the defendant. A recent Massachusetts personal injury action is an example of the consequences injured parties face.

In this case, the injured parties filed suit against a “big box” store’s pharmacy, alleging it had filled a prescription with a dosage 10 times higher than prescribed. The patient alleged that when he took these pills over a four-day period in 2009, he suffered renal failure and other physical issues. The injured patient sought damages for his hospital and medical expenses, lost wages, and pain and suffering. His wife also filed suit for loss of consortium and lost wages.

As the proceedings moved forward, the district court set a deadline of July 1, 2015 for the plaintiffs’ expert witness disclosures, or the list of people they intended to call to testify as experts in the relevant field. The injured person missed this deadline, and the defendant pharmacy moved to prevent the plaintiffs from offering any expert testimony. The court provided the couple with an extension, moving the deadline to December 21, 2015. With the extension, the injured parties provided the name of one doctor as a prospective witness but failed to include a report by the doctor to the defendant, as required by the pretrial order. No other prospective experts were named.

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Obtaining all of the workers’ compensation benefits you are entitled to receive can be a long, arduous journey. This is seen in a recent Reviewing Board case in which an employee sustained work-related emotional injuries from a series of encounters with management in a three-year period. The employee was previously awarded temporary and total incapacity benefits and managed to keep the awarded benefits after the employer appealed the award. The prior administrative judge found the work-related events were the major and predominant cause of the worker’s injury, disability, and need for treatment and exacerbated her PTSD from childhood occurrences.

During the appeal of the temporary benefits, the worker filed for permanent and total incapacity benefits to begin when the period for temporary benefits ended. The same administrative judge heard and awarded the permanent and total benefits to begin on May 13, 2012 and end on December 13, 2013. Both parties appealed. The judge heard the testimony of three lay witnesses but did not hear the medical deposition of the independent medical examiner (IME). The judge left the department, and the case was reassigned to a different judge. The parties agreed the judge could use the transcript of the last hearing in making her decision, but the injured person would testify again so that the judge could assess her credibility.

The IME re-examined the injured employee prior to the worker’s testimony before either judge and issued a report. The first judge found the report was adequate, and the medical issues were simple enough to avoid opening the medical record. Medical evidence was permitted, however, to provide proof between the date the permanent benefits were claimed and the date of the IME’s report. The second judge made similar findings and also allowed evidence for the “gap medicals.”

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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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