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Workers’ compensation may be available in different forms, depending on who your employer might be. If you work in construction, your claim would likely be filed through your employer’s insurance company and benefits reviewed through the boards and hearing officers under Massachusetts’ Workers’ Compensation Act. If you are employed as a civilian defense contractor through the United States Government, and are hurt or killed while working in construction or work related to national defense, war activities, or a public use of the U.S., you or a qualified family member can file a claim through the Defense Base Act (DBA), which is an extension of the Longshore and Harbor Workers’ Compensation Act. Like state workers’ compensation claims, the injury or death-causing accident generally occurs during the course of employment. However, under the DBA, an exception exists for injuries caused while in a “zone of special danger,” where it isn’t necessary for the injury to occur during work hours or during activities that would ultimately benefit the employer.

In Battelle Memorial Institute v. Dicecca (No. 14-1742), the First Circuit Court of Appeals reviewed whether an injury occurred in a zone of special danger in an appeal by an employer and its insurance company. The petitioners in this case argued against the award of death benefits under the DBA granted by the Benefits Review Board (Board) to the widow of a contract employee in Tbilisi, Georgia. Her husband was allowed a special stipend for vouchers to use on taxis to get around the city for any purpose, whether professional or personal, and was provided an extra 25% salary supplement for “hardship pay” for working in conditions that are unusually difficult or dangerous, or facilities that are inadequate. The man was traveling to a grocery store 20 minutes away when another driver hit his taxi and killed him. The wife filed suit for death benefits under the DBA, pointing to the special pay allotted for dangerous conditions as support for her claim, in addition to the perpetual “on call” nature of her spouse’s job.
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In personal injury cases, the focus is typically on the accident itself and its effects on the injured person. The actions of the person at fault, or defendant, are discussed, beginning with the question of whether he or she owed a duty to the injured party. The next question is whether the at-fault party’s actions led to the accident that caused the injuries sustained. The injured person investigates the at-fault party’s behavior, looking at his or her actions immediately preceding the accident. This investigation could extend to prior behavior like DUIs or negligent care of property to reveal a pattern of negligence. Sometimes, though, the at-fault party and his or her counsel will look at the medical history of the injured person to argue that the injuries alleged were not ones that stemmed from the accident.

In a recent unpublished Massachusetts appeals court case, Hannon vs. Calleva (14-P-1061), the at-fault party argued that the injuries claimed in that case were the result of the injured person’s decades of work as a telephone installation repair man. During the accident, the injured man was driving a large commercial van and was stopped at a red light. The at-fault driver pulled up behind him and and heard a beeping sound. When she turned around to look for the source of the sound, her car came into contact with the rear bumper of the van in front of her. The injured driver sought medical attention a few days after the accident, complaining of neck pain. Eventually, the neck pain became chronic for the injured driver. At trial, the driver discussed prior medical conditions that could have contributed to the pain, including treatment for a shoulder injury incurred at work. He also discussed his struggle to return to work and the inability to perform his duties when he was there, despite the physical therapy and trigger point injections.
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Many personal injury suits in Massachusetts are filed within the Commonwealth’s court system. Some lawsuits end up in federal court if a violation of a federal law or regulation occurs, or if one or more of the parties involved in litigation reside or conduct business in another state. The injured party would likely argue that his or her state is the most appropriate place for the litigation to unfold. Federal District Court cases from Massachusetts are heard in the First Circuit Court of Appeals, which also includes the district courts of Maine, New Hampshire, Puerto Rico, and Rhode Island. Any published decisions from the First Circuit are binding and instructive on similar matters arising from any and all districts.

A recent case arising from the District of Puerto Rico, Rosa-Rivera v. Dorado Health, Inc. (No. 13-1328) reviewed a jury award to an injured baby and his parents, after he received negligent care in the hospital by the doctors and staff. In this case, the parents, acting on their own behalf and on behalf of their son, alleged that the hospital and the obstetricians who delivered him were negligent and caused him to suffer trauma, shoulder dystocia, and ultimately paralysis of the arm. The parents took the matter to trial, and the jury found both the defendant doctors to be negligent, but only one was responsible for causing the injuries. The jury awarded the family $807,500. Dissatisfied with the verdict, the family sought a new trial but was denied by the district court. The family alleged several procedural errors during the trial to the district and circuit courts, but they were denied a new trial in both courts. The family argued that the trial judge erred in not allowing their attorney to ask a nurse at the defendant hospital leading questions. They also claimed that the judge should have used one of the proposed jury instructions offered by their attorney and that the jury gave an inconsistent verdict.
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Summer months are often the time when home repairs are done. Home owners hire general contractors for a project, and those contractors may hire subcontractors to do specific parts of the project. If one of the workers gets hurt, questions of liability instantly arise. If the worker is an employee of the subcontractor or general contractor, he or she may qualify for workers’ compensation benefits through his or her employer. The injured worker may also choose to hold the home owner or other parties involved in the work liable through a personal injury suit. Litigation and payment of costs are often taken up by the insurance companies involved, and they may dispute amongst themselves the additional issues beyond the facts surrounding the injury.

Preferred Mut. Ins. Co. v. Vermont Mut. Ins. Co. (No. 13-P-1890) discusses whether or not the insurance company that provided a homeowners’ insurance policy for the family, including the son, could withdraw from their responsibility to provide coverage in the presence of another insurance policy covering the son’s business. The discussion began after the family began to to renovate their second floor bathroom and hired a business to work on the plumbing. An employee of the plumbing contractor injured himself after he fell from the second floor, due to an unsecured railing that was unfastened by the son when he was moving a cast iron bathtub. The employee and his wife sued to hold the parents and the son personally liable for the accident and for the wife’s loss of consortium.

The company issuing the home owner policy refused to defend the son. The son’s policy issued in connection with his business as a self-employed electrician agreed to defend the son in the suit but reserved the right to withdraw, depending on whether or not his role in the renovation project was personal or professional. The injured plumber and his wife were ultimately successful at the jury trial, winning an award of over $225,000.00 for the plumber and more than $12,000.00 for the wife. The son’s business insurance company had previously filed another action naming the home owner insurance company, the son, and the parents as defendants, declaring that if their policy limits were exceeded, the other insurance company was obligated to defend and indemnify the son.
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If a Massachusetts worker is injured or falls ill while conducting a work-related activity, he or she may be able to pursue a variety of benefits, including workers’ compensation, to help pay for daily expenses and medical bills. This system, under the Commonwealth’s workers’ compensation laws, is designed to make the process easier for all parties. The employer does not have to worry about extensive personal injury suits, and the injured worker does not have to prove fault and wait a long time for payment of benefits. Other structured benefits, like unemployment benefits, may also be available to help pay for the expenses.

The main difference between workers’ compensation and unemployment assistance through the Massachusetts Department of Unemployment Assistance (DUA) is that the DUA provides benefits to workers who are not working through no fault of their own, but are able to work. Workers’ compensation is designed to provide benefits to injured workers who are unable to work, both temporarily and permanently. The difference between what types of benefits are available can hinge on a very slight variation of fact or circumstance of when the illness or injury occurred, and what action was taken to address the injury or illness.

A recent Appeals Court case, Ferreira v. Dept. of Unemployment Assistance (14-P-423), reviews a situation where an employee sought benefits under the DUA after he left the employment of a motorcycle dealership as a result of a health condition that he felt compelled the resignation. Massachusetts case law has established that “an employee who leaves work due to a reasonable belief that his work environment was causing a health problem is not disqualified from benefits.” (See, e.g., Carney Hosp. v. Director of the Div. of Employment Security, 382 Mass. 691 (1981). The set of facts in Ferreira primarily looks at the medical proof offered to determine whether or not the injured person was entitled to unemployment benefit payments.
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When organizing your Massachusetts will and estate, you may wonder about the extent of the powers and responsibilities given to those with titles like attorney-in-fact, health care proxy, trustee, guardian, or conservator. Estate planning includes assigning responsibility to someone in the course of your lifetime in the event you are unable to handle your own affairs. One of the documents you may use is a Power of Attorney. The Commonwealth Appeals Court recently issued a decision in Petriello v. Indresano (14-P-135) that reviewed whether or not the woman who acted as a health care proxy agent, and eventual designated agent with power of attorney, had the right to apply for harassment prevention orders against the children of her deceased domestic partner of 45 years. The Appeals Court ruled that a Power of Attorney can apply for the orders on the person’s behalf but ultimately decided to remand the case on another issue.

In Petriello, the court discussed the effect of a written power of attorney, which they considered to be a legal issue and not one for the jury to determine. Case law established that the court, when evaluating a power of attorney document, must put themselves in the place of the parties and give the words in the instrument their plain and ordinary meaning. A power of attorney is read like any other contract and is interpreted as a whole with effect given to all the provisions to enact its overall purpose. As the court reviewed the power of attorney instrument in Petriello, they felt the document gave explicit authority to the agent to “exercise or perform any act, power, duty, right or obligation” that the woman had, as if she was personally present. The power of attorney document granted the agent full authority and was executed soon after she designated her as her health care agent and in the midst of the conflict with her deceased domestic partner’s family.
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Shop owners and other businesses owe a duty to their customers to keep the store safe from dangers. If they do not maintain the premises as required by statute and case law, they can be held liable for the injuries suffered as a result of their failure. In Bowers v. Wile’s, Inc. (14-P-313), the Appeals Court of Massachusetts reviewed a lower court’s decision based on its interpretation of the “mode of operation” approach in premises liability cases. This approach was developed in a Supreme Judicial Court decision in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007). In this case, the court eased the burden placed on the injured person to show that the owner had actual or constructive notice of the unsafe condition on the premises. For example, if a glass jar containing liquid spilled in a grocery store, the injured party who slipped and fell on the item would have to show the grocery store managers were aware, or should have been aware, of the mess.

After Sheehan, an injured party only needs to show that the dangerous condition was “related to the owner’s self-service mode of operation.” The trial court granted the defendant store’s motion for summary judgment based on the view that the “mode of operation” approach only applies when the dangerous condition results from the breakage or spillage of items offered for sale. In this case, the injured woman was walking to a store on a clear day with no rain or snow and fell over a “river stone” that had been moved from the gravel area maintained by the store to the sidewalk. The injured woman had not seen or noticed any stones prior to her fall, and she suffered a displaced fracture on her hip that required two surgeries to repair.
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When you or your family member is in a Massachusetts car accident, the primary focus is and should be on emotional and physical recovery. Soon afterward, the concern over expenses and the ability to pay them moves into view. Even when insurance policies are in place and cover expenses, policy limits can fall short of covering the total cost of medical care and lost wages. Alternate routes to make up the difference must then be considered, especially when standard options like underinsured or uninsured coverage options are unavailable or also fail to cover all the expenses.

In a recent Appeals Court case, Borden v. Progressive Direct Ins. Co. (14-P-449), an injured woman had to look to the personal policy of the driver after he hit her car in a work truck. In any car accident case, the injured person first looks to see if the at-fault driver has an insurance policy that will provide funds toward the expenses. In Borden, the woman was hit by a tow truck used to transport automobiles to and from dealer lots and sales auctions. The accident-causing driver was hired to assist with work as needed by the owner of the truck, and he had used his own vehicle to arrive at the owner’s garage on the day of the accident. The at-fault driver was on his way in the company truck to pick up a car for delivery when he hit a car, injuring the passenger in the car.
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In Massachusetts, claims for personal injury must be filed within the timeline set out by the Massachusetts General Laws. Medical malpractice, personal injury, product liability, and wrongful death actions must be filed within three years of the accident or the date the injury was discovered. If claims aren’t filed within the statutory timeline, the injured person generally loses the ability to sue for damages. Other timelines guide actions that must occur within certain types of civil suits, including the requirement found in Massachusetts G.L. Ch. 93A, which directs the plaintiff to send a demand letter 30 days before filing an action for an unfair and deceptive practice.

In auto accident cases, courts, insurers, and the injured parties all must look to an insurance contract to see or determine whether or not the policy provides monetary relief for the injured person. If the insurance company determines that the injured person was not covered under the policy in question, the injured person may then choose to file a separate, related suit against the insurance company for failing to provide coverage as contracted.

In a 2008 decision, Kanamaru v. Holyoke Mut. Ins. Co. (72 Mass.App.Ct. 396), an injured bicyclist sought benefits under his roommate’s policy after he was hit by an uninsured vehicle on the road. The roommate had previously insured him under his auto policy, since he intended to share the vehicle with the injured man. After the suit was filed, the insurance company declined to cover the roommate’s injuries, arguing that the policy did not extend to the roommate for UM (uninsured motorist) coverage. In addition to his arguments that he was covered by the policy, the injured man filed suit against the insurance company for unfair and deceptive trade practices. The appellate court in that case ruled that the trial judge correctly entered a summary judgment in favor of the insurer defendant for failing to send a demand letter 30 days prior to filing suit.
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In a recent decision, Boudreault v. Nine (14-P-359), a medical malpractice decision in favor of a radiologist was overturned by the Superior Court of Massachusetts. In this case, it was alleged that the doctor failed to properly interpret the patient’s mammogram results and recommend the necessary treatments. The injured woman was seen for her annual mammogram and had abnormal results. There was a a well-defined nodule in one of her breasts, and the treating physician at the time recommended an ultrasound, spot compression mammograms of both breasts, and magnification mammograms of the affected breast. The patient followed up with the recommendation and returned for a diagnostic mammogram ultrasound. In that appointment, new micro calcifications were found that were noted but determined not to be worrisome.

At that time, no additional recommendations were made other than to return in six months. The injured woman complied, but she saw a different radiologist during this report. This doctor, the defendant in this appeal, reported that there wasn’t any evidence of a dominant mass, and that the calcifications noted before had not significantly changed and were “likely benign.” The doctor did not recommend any further biopsies or MRIs. He did recommend continued surveillance and another follow-up in six months to assure “interval stability.” The doctor felt that the woman remained in category 3. The injured woman missed her appointment, even though staff tried to reach her and remind her of the appointment. One year after her third visit with the defendant doctor, the injured woman returned for her follow-up mammogram. At this appointment, the doctor found that her breasts were highly suspicious for malignancy. She underwent other tests, and a biopsy revealed she had invasive ductal carcinoma. The injured woman had to undergo a radical mastectomy and chemotherapy soon after the diagnosis.
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