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Under Massachusetts law, there are several types of damages an injured person can recover through civil action: economic damages, which cover medical expenses, continuing medical care, lost wages, and inability to earn future income; and non-economic damages, which include pain and suffering, loss of enjoyment, and disfigurement. In recent news, a Florida jury awarded $23.6 billion in punitive damages to a widow who lost her husband in 1996 to lung cancer. The widow alleged that the tobacco industry failed to warn her husband that nicotine was addictive and can cause lung cancer. The deceased husband smoked from age 13 till his death at age 36.

Punitive damages are damages designed to punish through monetary means and discourage similar behavior in the future by the at-fault party and the general public. They are reserved for the most egregious and outrageous behavior by at-fault parties. In Massachusetts, punitive damages are only available if granted by statute. (See International Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308 (1983).) Examples of actions that allow punitive damages are wrongful death actions under Chapter 229, Section 2 and employee discrimination actions under Chapter 151B. Punitive damages are available for medical malpractice suits, but those have a cap of $500,000 unless the injury is catastrophic. Massachusetts case law has established that punitive damages are only available for conduct that is outrageous due to the defendant’s evil motive or reckless indifference to the rights of others.

In Haddad v. Wal-mart Stores, Inc., 455 Mass. 91 (2009), the Massachusetts Supreme Judicial Court reinstated a $1 million punitive damage jury verdict for a woman who sued her employer, Wal-mart, for discrimination in violation of Chapter 151. In this case, the woman was awarded $972,774 in compensatory damages, but the judge set aside the $1 million punitive award, reasoning that punitive damages could only have been awarded if the employer acted with the specific knowledge it was violating the anti-discrimination statute. The Supreme Judicial Court noted in its decision that this requirement only applied to age discrimination cases. The Court also referred to prior rulings that held if the employer unlawfully interfered with the legally protected rights of others, that would be enough “reckless indifference” to warrant punitive damages. The Court noted the history of refusing to pay the hourly differential to the plaintiff, a female pharmacist, and firing her for one offense after 10 years of employment equated to egregious behavior.
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In Massachusetts personal injury cases, an injured party must show that the other party owed a duty to them, that the party failed to uphold that duty, that the failure resulted in an injury, and the type and amount of damages suffered as a result of the injury. When an injury occurs on the job, proof of negligence or fault is not necessary for recovery, but proof of causation that the injury resulted from the workplace is required.

The Massachusetts Reviewing Board issued a ruling last month in Stephan A. Dugas v. Coca-cola that looked at whether or not an employee’s hip conditions were work-related. The employee had worked from 2003 to 2009 as a merchandiser and bulk account manager, the duties of which included stocking displays, shelves, and coolers, and moving products by lifting, carrying, pushing, and pulling carts with a non-electric hand jack. In 2009, the man sought treatment for pain in his hip and began to receive epidural steroid shots to relieve the pain. Eventually, the man received a diagnosis of congenital hip dysplasia with degenerative changes in his left hip and arthritis and osteophytes in his right hip.

The Reviewing Board Decision pointed out in its recitation of facts that the employee did not mention the hip as a work-related injury to either physician when he initially sought medical treatment. The Reviewing Board also addressed the employee’s history of playing football in high school and playing men’s field hockey three times a week until he injured his right knee in 2002. The employee filed for workers’ compensation and was denied, and he pursued compensation through a hearing. The judge, after hearing testimony from doctors, upheld the denial of payments for medical treatment. The judge ruled that the employee failed to show that the injury was the result of an industrial accident that occurred while working for his employer.
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In Massachusetts, if someone dies due to the negligence of another, recovery for damages like lost wages, loss of companionship, and funeral expenses may be available through the Wrongful Death Act. The Wrongful Death Act allows recovery if a willful, wanton, or reckless act caused the death of a person who would have been eligible for personal injury damages if he or she had survived. If there was malicious, willful, wanton, or reckless conduct or gross negligence by the at-fault party, punitive damages may be available.

Earlier this year, the Massachusetts Supreme Judicial Court issued a ruling in Estate of Moulton v. Puopolo, which prevented the estate of a counselor from pursuing damages under the Wrongful Death Act. The counselor was killed at a mental health clinic by a patient who had a long history of criminal acts and violent behavior. The pleadings alleged willful, wanton, reckless, and malicious conduct that constituted gross negligence by the collective defendants. The defendants included the directors of the mental health institution, psychiatric consultants involved in the patient’s admission, the Commonwealth of Massachusetts, and the patient himself. The pleadings claimed that the directors should have known the patient’s history of violence and that the directors failed to enact policies to handle a patient with such violent tendencies. The estate left out the hospital because the hospital was the direct employer and immune from suit under the Workers’ Compensation Act.

The director defendants appealed the lower court’s decision, which refused to extend the immunity from suit extended to employers under the Workers’ Compensation Act. The court first looked at the history of the Workers’ Compensation Act, which was designed to provide quick payment for injuries suffered by employees. In exchange for quicker, more assured recovery, employees are not allowed to pursue personal injury actions against their respective employers. Employers are provided with immunity from personal injury suits so that they aren’t entrenched in time-consuming and expensive litigation.
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If you know anyone who has applied for Social Security Disability benefits, he or she will tell you it is a lengthy and slow process. If your application for disability benefits has been denied twice, then the approximate waiting time in order to have your case heard in front of a judge is approximately one year from your last appeal date. This is a long time for someone who is disabled and unable to work and therefore unable to earn any income.

Recently, the Social Security Administration (SSA) enacted a new initiative that allows Veterans who are 100% permanently and totally disabled to receive expedited service in the processing and handling of their Social Security Disability application.
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In New England, old man winter is here for about five months, and depending on what the groundhog sees, more winter may be yet to come! Snow and ice is everywhere and Massachusetts residents should be prepared to battle these icy conditions. A slip on ice or frozen snow can cause serious injuries. Massachusetts tort law allows injured persons to sue property owners for failing to remove dangerous conditions from their property.

 

 
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In Massachusetts, drivers can purchase Medical Payments (MedPay) coverage on their automobile insurance policy. This coverage is optional and therefore additional premiums would apply. However, this additional coverage, which can pay your medical bills resulting from a car accident, is well worth the extra premium. For reference, please feel free to check out our previous blog update The Benefits of Having Medical Payments On Your Massachusetts Automobile Policy. Unfortunately, many times the insurance company isn’t willing to provide you with the benefits you pay additional premiums for.

Recently, the Massachusetts Supreme Judicial Court (SJC) heard a case, Golchin v. Liberty Mutual Ins. Co., 466 Mass. 156 (2013), wherein the Plaintiff was seeking benefits under MedPay as a result of injuries she sustained in a motor vehicle accident. The Plaintiff’s health insurance company paid her medical bills, asserted a lien on her settlement, and was paid from the settlement of the case. The Plaintiff had purchased $25,000.00 in MedPay coverage. The health insurance lien was about $32,000.00. The Plaintiff now seeks the $25,000.00 in MedPay benefits to be issued to her. The Defendant a/k/a insurance company denied the MedPay coverage stating the Plaintiff’s medical bills were already paid under her health insurance coverage and therefore there was no so-called bill to pay. The Plaintiff brought suit against the insurance company stating that its failure to provide the MedPay coverage she pays additional premiums for constituted a breach of contract between her and the insurance company, as well as a breach of the implied covenant of good faith and fair dealing, which is a violation of M.G.L. c. 93A.

The issue before the SJC was whether MedPay benefits were available when the medical bills or expenses have already been paid by the health insurance carrier.
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The general rule in Massachusetts is that a property owner has the duty to maintain their property in a reasonably safe condition given the circumstances. Mounsey v. Ellard, 363 Mass. 693 (1973). This is why we usually remove broken glass from our floors and clean up slippery liquid spills in our homes.

This duty to keep property reasonably safe includes the obligation to warn lawful visitors of dangerous conditions, such as those glass or liquid spills that somehow haven’t been cleaned up. However, the law states that the property owner has no duty to warn visitors of dangers that are “open and obvious” to a person of reasonable intelligence. O’Sullivan v. Shaw, 431 Mass. 201 (2000). In other words, if there is a large bright red liquid puddle on a white tile floor in a well-lit room, the owner need not warn a visitor because the hazard is apparent.

Like most rules, they are based on some degree of common sense. But, we live in a world where common sense doesn’t always govern human behavior. People are often unpredictable, and the law sometimes struggles to keep up.
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When any personal injury case goes to trial, the client’s medical records and itemized medical bills must be certified in order to be introduced into evidence. Without this mandated certification, the judge will throw out the medical records and bills.

A certification is a document that the doctor or authorized agent of a hospital signs certifying that the bills are fair and reasonable and that the records are true and accurate. Massachusetts law requires that the certification be “subscribed and sworn to under the penalties of perjury.” M.G.L. c. 233 § 79G.

More importantly, a copy of the medical records and bills, along with a “written notice of intention to offer such bills or reports as evidence” must be mailed via certified mail return receipt requested to all opposing parties no less than ten (10) days before trial. M.G.L. c. 233 § 79G. Once the return receipt has been received, counsel must file an Affidavit with the court stating that he or she has complied with the obligations required by M.G.L. c. 233 § 79G.
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According to the Medicare Secondary Payer (MSP) Act, Medicare automatically has a lien on your settlement for reimbursement of all injury-related medical expenses it paid on your behalf as a result of your accident or injury. This means that Medicare is legally entitled to a portion of your settlement proceeds. Medicare’s payments, i.e. conditional payments, are payments made to your medical providers for medical expenses that were incurred on or after your date of injury up until the date of your settlement. Under Federal regulation, Medicare has a right to recover from your settlement proceeds for all the money it [Medicare] paid out for your injury-related claims.

Over the past few years, there has been discussion about personal injury cases and whether a Medicare Set Aside Arrangement (MSA) is appropriate. “Determining whether a Medicare Set Aside Arrangement (MSA) is appropriate is based on case-specific facts.” Tort Trial & Insurance Practice Section, The Brief, Fall 2012.Whether a MSA is needed in a workers’ compensation settlement depends on the settlement terms. For example, when a workers’ compensation case settles on an unaccepted basis, the settlement is three-fold containing allocations for wage loss, past medical expenses, and future medical expenses. Since the settlement specifically includes future medical expenses, a Medicare Set Aside Arrangement would be appropriate. However, in Massachusetts, almost all workers’ compensation settlements are based on accepted liability and there are no allocated future medical expenses because the settlement agreement allows the medical expenses to remain open after the settlement. This means that any future treatment would be covered by the workers’ compensation insurance company and therefore no Medicare Set-Aside Arrangement is warranted.

When it comes to a personal injury settlement, every case is different so there is no cookie-cutter mold as in workers’ compensation settlements. Personal injury cases involve various limits of liability, pain and suffering, multiple injuries, etc. In some cases, there simply isn’t enough liability insurance to cover the client’s damages. In that respect, how can Medicare require a set-aside when there isn’t even enough coverage to compensate the injured?

Since there is no specificity whether the settlement included any future medical expenses, then it would be impossible to determine whether a Medicare Set Aside Arrangement is necessary. However, if the case went to a jury and the jury specifically determined how much money was to be allocated for lost wages, past medical expenses, and future medical expenses, then it maybe MSA-appropriate. In the meantime, there is no Federal regulation mandating a Medicare Set Aside for any third party liability settlement, judgment or award.

If you would like to learn more about Medicare and Set-Aside Arrangements, please visit the following links:

Workers’ Compensation Medicare Set Aside Arrangements
Medicare Secondary Payer Recovery Contractor (MSPRC)
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Following the Newtown school shooting, Connecticut is attempting to pass into a law a bill which would cover treatment costs for mental injury stemming from the workplace. The bill will only cover future incidents of mental injury stemming from work-related trauma; however, a special fund is being planned to cover those who are suffering mental ailments as a result of the Newtown massacre.

Massachusetts covers most workplace injuries under its workers’ compensation laws, including mental injury.

Under Massachusetts law, first responders who suffer from mental illness as a result of work-related trauma (i.e. post traumatic stress disorder or PTSD) are eligible for workers’ compensation. Unfortunately, since Connecticut law does not yet cover such claims, the first responders and teachers who suffered mental injuries as a result of the shootings must rely on a special fund set up to cover the expenses of those affected.

Mental injury stemming from the workplace can be more difficult to identify than a physical injury; however, it is important to remember that such injuries do occur and are covered under workers’ compensation in Massachusetts. Mental illness can result in missed work, used sick days, decreased performance, and large medical bills, and as a result, it is important that claims be filed if the mental illness is connected to the activities performed professionally. Claims for mental injury are just as legitimate as claims for physical injury, so workers should not be afraid to file a claim if they have suffered a trauma at work leading to injury, whether mental or physical.

In Massachusetts, employees who suffer mental and/or emotional injuries as a result of a particular event or series of events can pursue a claim for a mental injury arising from such an event.

According to Massachusetts case law, there are several requirements to prove a compensable mental injury: (1) the predominant cause of the disability; (2) an event or a series of events occurring within the employment; (3) that is not a bona fide, personnel action; or (4) is the intentional infliction of emotional harm in a bona fide personnel action. See Walczak v. Mass. Rehab. Comm., 10 Mass. Workers’ Comp. Rep. 539 (1996).

Here are some helpful Massachusetts workers’ compensation links for additional reading:

Massachusetts Workers’ Compensation Guide for Injured Workers, April 2012

Hurt on the Job? Workers’ Compensation Can Help, March 2012
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