Published on: |

In a Massachusetts unpublished appellate case, Silva v. The Stop & Shop Supermarket Company, LLC, the Appeals Court considered the question of what is necessary for a safe working environment. A merchandiser of a vending company injured herself while working with product displays. Part of her duties required her to remove and replace shelves and then restock with products. To do so, the merchandiser had to lift and carry materials weighing up to 35 pounds. On the date of the accident, the freight elevator was not working, and the merchandiser had to use the stairs when she transported shelves to and from the storage area. On the fourth or fifth trip, she felt a pop in her back and then severe pain.

In negligence cases, there is a discussion of whether or not someone or a company owed the injured party a duty for a safe product or environment. A trial or appellate court can rule that the person or entity alleged to have caused the injury owed no duty to the injured party, removing the liability to pay damages. In Silva, the injured merchandiser agreed that the store did not have a duty to provide elevator service, but it did have a duty to provide a working freight elevator as part of a safe working environment with the necessary safety equipment. The merchandiser also argued that elevator safety regulations required the store to provide elevator service.

The Appeals Court addressed the first argument in two parts. First, the court stated that case law has not included a freight elevator as a necessary piece of safety equipment. Chapter 149, Sec. 6 of the Massachusetts General Laws establishes the need for places of employment to provide suitable safety devices for accident prevention, as determined by Commonwealth agencies. Other sections of Ch. 149 provide specific requirements for confined spaces, power transmission equipment, and dangerous undertakings, but they do not include requirements for elevators. Without the requirement to provide elevators as safety equipment, the injured merchandiser lacked the ability to show the store had a duty to her to provide a safe environment in which to work.
Continue reading →

Published on: |

Massachusetts Workers’ Compensation is designed to provide benefits for employees who are injured during the course of their employment. No act of negligence, or wrong-doing, needs to be shown. However, an insurance company or employer can contest how much of the medical care and expenses are actually attributable to the work injury. If the insurer decides to deny your claim, an appeal is available, and you or your family member can file a claim with the Department of Industrial Accidents (DIA). The DIA requires certain forms to be filled out, including medical evidence that supports the claim. The DIA, in its Guide for Injured Workers, encourages legal representation after an insurer denies the claim.

If your claim is accepted, or at least part of the claim, different benefits are available at different points of your recovery following the injury. Medical Benefits under Sec. 13 and Sec. 30 of the Workers’ Compensation Act provide payment for reasonable medical care that stems from the injury. Included is reimbursement for travel to and from the doctor’s office. There are also Temporary Total Incapacity Benefits, called Sec. 34 benefits, which are provided if the work injury causes you to miss work completely. The maximum amount of time that Sec. 34 benefits can be received is three years. If an injured worker is able to work, but not at the same capacity and pay before the injury, he or she is eligible for Partial Incapacity Benefits (Sec. 35). The injured worker can receive up to 75% of what the he or she would qualify to receive under Sec. 34 benefits. These benefits can be paid up to five years.

If the injured worker has received every type of medical treatment available for the injury, or reaches maximum medical improvement, then he or she can file for Permanent and Total Incapacity Benefits (Sec. 34A). These benefits are available as long as the worker is disabled. The Reviewing Board of Massachusetts recently reviewed an appeal from an employer in Tracy v. City of Pittsfield, who was also a self-insurer, who disagreed with the award of Sec. 34A, Sec.13, and Sec. 30 benefits to an injured employee who hurt himself after he hit a pothole while operating a road paver. He bounced out of his seat and injured his back, requiring surgery on his spinal column at different locations. The self-insurer agreed that the injury was a result of the workplace accident, but did not accept responsibility for the surgery and the protrusions.
Continue reading →

Published on: |

The construction of a will or trust in Massachusetts can determine whether or not the estate of a deceased person is distributed according to his or her wishes. The placement of punctuation or the absence of two words can completely change the meaning of a document and how assets are issued. The structure of the document can certainly affect how or whether the assets are taxed upon transfer.

At the end of last year, the Massachusetts Supreme Judicial Court issued a ruling on one of the trusts created among a series of trusts for the benefit of a couple’s children and grandchildren. The couple each created trusts in their names to provide income for their sons, preserving principal for future generations. The trust under the patriarch’s name was irrevocable upon his death and established two trusts for his wife’s benefit during her lifetime. She was granted the power of appointment over the marital trust, and when she passed, the principal of the patriarch’s trust was divided into two “share trusts” for each son. The sons had the power of appointment over these trusts to “one or more of the Donor’s issue.”

These share trusts were not subject to the Federal generation skipping transfer (GST) tax, which taxes property transfers made to grandchildren that were not subject to the estate tax upon the trust’s initial transfer. This tax was enacted in 1986 and offered exemptions up to $3.5 million. This tax was enacted after the patriarch’s death, but while the matriarch still lived, so she created her own trust to help avoid the taxation of the GST. She used her power of appointment over the marital trust by appointing it to her new trust, directing that amounts equal to the exemption be held in a family trust. The trust explicitly stated that her grandchildren and remote descendants are fully exempt from the GST tax.
Continue reading →

Published on: |

When a Massachusetts worker faces the pain and inconvenience of an injury, the frustration over the inability to work can sometimes be overwhelming. Aside from facing lost wages during the recovery period, the employee may face the daunting reality of learning a new job skill if the injury was severe enough to prevent a full return to the work he or she had previously been able to do. Learning a new trade and potentially changing one’s occupation completely is challenging enough after a serious injury, but it can become a more complex decision if the worker suffers a series of moderate injuries over a period of time instead of catastrophic injuries from one accident.

In the Commonwealth of Massachusetts Reviewing Board Decision, McDonald v. Brand Energy Services, Inc., the Board affirmed the award of Section 34 benefits (Temporary Total Incapacity) for an injured employee. The employee was a union laborer who had worked and been injured in industrial accidents over the years, dating back to 1991. The injured employee suffered back injuries four times prior to the immediate case on appeal. The employee acquired lump sum settlements in each case, and returned to work three years after the fourth accident in 2001. He did not work the heaviest jobs but did push through daily moderate back pain to complete other tasks.

In 2012, the employee sustained another back injury when a piece of staging was dropped by a colleague as they were loading a truck together. The employee was approved for light work following the accident, but he did not return to work. When he brought his application for benefits, the insurer alleged that by returning to work after several back injuries, he was committing serious and willful misconduct that precluded his ability to receive workers’ compensation for this injury. The workers’ compensation judge at the initial hearing ruled against the insurer, making a finding that the employee did not commit willful or serious misconduct and did not misrepresent his injury, since he advised he could not perform the heaviest tasks, like jackhammering. The Reviewing Board also did not believe that the employee’s return to work was misconduct, and it found that the injury was the result of the other employee hitting him, and it was no fault of his own.
Continue reading →

Published on: |

Injuries in Massachusetts can take many different forms. Car accidents, construction accidents, and slip and falls on slick sidewalks all come to mind as the types of personal injuries one reads about in the news. They are also the type of injuries that are eligible for legal action if a third party’s negligent actions caused the accident. In a civil suit for negligence, the injured party must show that the at-fault party causing the accident had a duty, that the defendant failed in that duty, and that the injury was caused by the negligence. If the injured party can present proof by the preponderance of evidence, he or she may be able to obtain damages, or costs incurred as a result of the injury. Injuries that qualify for monetary damages extend beyond bodily injuries. Massachusetts common law also allows for the recovery of monetary damages for mental and emotional harm under the causes of action for Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress.

An unusual injury was recently discussed in a U.S. 1st Circuit Court of Appeals case,Tobin v. FedEx Corp. A package was mis-labeled and delivered by mistake to a woman, who opened it to discover that the package contained a large quantity of marijuana. The woman was distressed by this unexpected arrival of an illegal substance in front of her young daughter. The woman handed over the substance to the authorities, but she became more distressed after a stranger arrived at her door with two other strange men waiting in the car, asking if a package was sent to her by mistake. The woman slammed the door in his face and called the police. The woman became distraught, believing that the employees of FedEx had shared her home address with people involved in illegal drug trading, and she filed suit for invasion of privacy, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Continue reading →

Published on: |

Massachusetts workers’ compensation laws were enacted to provide a quicker route for injured workers to receive benefits, while shielding employers from time-consuming litigation. An injured worker does not have to prove negligence, just that he or she suffered an injury during the course of employment. Claims however, are not always granted by the workers’ compensation insurance, nor are they always awarded by the Workers’ Compensation Judge (WCJ). Sometimes, in order to obtain benefits, an appeal must be filed to the Workers’ Compensation Reviewing Board.

Injured workers may be surprised to learn that they can also receive compensation if they have suffered from negative changes to their mental and emotional health. These are known as psychiatric injuries. They can form the basis of a claim alone, but they typically accompany a physical injury claim. Frequently claimed conditions include depression and anxiety.

An opinion was recently published by the Board that partially reversed a denial of benefits and recommitted the case for another look at the injured employee’s claim for permanent and total incapacity benefits. The injured worker suffered an industrial accident where he suffered injuries to his shoulder and psychiatric injury. The employer paid temporary total incapacity benefits until they were exhausted, but it filed to discontinue them when the injured worker filed for permanent total incapacity benefits.
Continue reading →

Published on: |

During the winter months, Massachusetts residents brace for the snow and ice that cause slick and slippery roads, sidewalks, and driveways. Some public establishments take the time and care necessary to ensure safe passage, while others neglect their property. Injuries that occur due to poor property maintenance are known as “slip and fall” cases, and more formally as “premises liability.” Slip and falls extend beyond icy passages and can include accidents like a slippery floor in a grocery store, or a decrepit, poorly lit staircase in an apartment complex. Owners are responsible under state law to maintain their premises in a safe condition for everyone who can reasonably expected to be on the property. If someone suffers an injury as a result of neglect, she or he can seek compensation for medical bills, lost wages, and pain and suffering from the property owner.

Thorough investigation conducted as soon as possible after the injury can greatly aid in the pursuit of damages. Each slip and fall case is unique, and individual facts that arise from an investigation can affect the outcome and amount of award an injured party receives. Frequently, owners will point to the injured party’s actions to rebut claims of negligence, or to their own attempts to warn or prevent injury.

The Commonwealth Court of Massachusetts recently issued a Memorandum and Order in Monaco vs. Vacation Camp Resorts International, Inc., which provides an example of the legal analysis conducted in a premises liability case. In this case, a man sought recovery for serious injuries when he fell down a hill. This hill was used by campers to reach a shower building, and the injured guest argued that the owners of the resort failed to light the pathway, keep it in a safe condition, or warn against its dangers. The trial court issued a summary judgment in favor of the resort, and the injured guest appealed.
Continue reading →

Published on: |

Accidents can be complicated events, with multiple parties involved and contributing to the cause of the accident. For example, two drivers at an intersection may both act recklessly while driving across. One may be texting while driving, and the other may be speeding to “beat” a yellow light about to turn red. If the texting driver suffers injuries, he or she may pursue civil action against the other driver, but questions will quickly arise as to fault and compensation. The texting driver may wonder whether or not he or she can recover anything from the other driver.

Massachusetts follows the doctrine of comparative negligence. In the scenario described above, if the speeding driver is found to be more than 50% at fault, the texting driver can recover damages from the speeding driver. The texting driver, however, can have his or her award reduced by the amount of fault assigned by a judge or jury. If the texting driver seeks $50,000 worth of damages from the speeding driver, but is found to be 40% at fault, the texting driver would only be able to recover $30,000 under Massachusetts law.

An example of a comparative negligence can be found in the case of Baudanza v. Comcast. In this car accident case, a service truck struck the driver’s side of an automobile while driving through an intersection. The injured driver filed suit against the truck driver and his employer. The defendant company argued that the injured driver was also negligent and attempted to bring in an expert witness to extrapolate the injured driver’s blood alcohol concentration at the time of the accident. However, the judge found it to be too speculative and excluded the defense expert’s testimony from the jury trial.
Continue reading →

Published on: |

To pursue a medical malpractice action in Massachusetts, an injured patient must show that there was a failure to use the generally accepted practices and procedures of a specific disease or disorder, commonly used by medical professionals in the same area of medicine, during his or her treatment. This is usually described as a breach in the standard of care. When filing a medical malpractice action, the injured patient must submit her or his case to the Medical Malpractice Tribunal (MMT) for review, so it can determine whether or not there is enough substantiated evidence to bring a case before a jury or judge. This can include testimony from a qualified expert, who attests to whether or not the standard of care was breached.

In Washington vs. Cranmer, the injured patient went to an emergency room for various symptoms. The 37-year-old woman complained of body weakness, left arm weakness, dizziness, high blood sugars, and blurry vision. The injured patient already had a history of diabetes, chronic hypertension, and high cholesterol, and she presented upon arrival with slow responses, high blood pressure, and difficulty walking. She was examined, treated, and released by an E.R. doctor, who determined that she was alert, able to walk and move, and oriented. The E.R. doctor prescribed blood pressure medicine after the injured patient revealed she had not taken her medicine that morning. A CT scan was conducted, which did not reveal any abnormalities. An MRI was additionally ordered so that the E.R. doctor could better determine her condition. The injured patient was claustrophobic and ultimately did not go through with the MRI, and she had elevated blood pressure. Despite the lack of test results to make a determination, the injured patient was discharged with instructions to return if she suffered any additional problems.

After her release, the injured patient suffered a stroke overnight, and she now has permanent neurological damage. The woman filed her medical malpractice action in the Massachusetts Superior Court and submitted it to the MMT for review, as required, but did not post the $6,000. The MMT concluded that the proof was insufficient to bring a legitimate question of liability in front of a fact-finder and dismissed for the lack of the statutorily mandated bond.
Continue reading →

Published on: |

With the holiday season upon workers and residents of Massachusetts, it is important to remember to stay safe when traveling to and from festivities during the holidays. Several establishments and events serve alcohol, and other drivers may become reckless by driving while intoxicated or become distracted by texting others, which are both prohibited under Massachusetts law. While it may be easy to determine that the driver of the other car should be held accountable for your injuries, it may become apparent and necessary that other people or entities should be held responsible as well.

In a civil action, the injured person, or plaintiff, must show the defendant, or the party alleged to have caused the injury, had a duty toward him or her. If a person violates this duty, and this causes an injury, he or she is responsible for damages under Massachusetts civil law. If there is no duty or link between the accident and the injury, liability does not exist. Examples of duties toward others can be found in Massachusetts statutory law. A driver has a duty to others on the roads or sidewalks to operate his or her vehicle safely. Businesses that sell or serve alcoholic beverages have a duty, known as Dram Shop Liability (Massachusetts General Laws Ch. 138, Sec. 69), to stop or abstain from serving alcohol to an intoxicated person. Likewise, a host is responsible under Social Host Liability laws (Massachusetts General Laws Ch. 138, Sec. 34) to refrain from providing an underage or intoxicated person with alcohol. Both commercial establishments and private hosts must remain vigilant about how much alcohol is being served and to whom it is served.
Continue reading →