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.
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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Recently a man was found guilty of workers’ compensation fraud after a private investigator filmed him at the gym doing some serious weightlifting. Apparently he had a doctor’s note stating he could only lift 10 lbs. Well, this video proves him wrong. A picture may be worth a thousand words, but a video is priceless!
https://www.youtube.com/watch?v=KCpdQTjB5J0
Committing insurance fraud is against the law. This man’s deceit and dishonesty cost him three years of probation, nine months of suspended jail time, and over $31,000.00 in workers’ compensation benefits that he must pay back.
Have you ever taken a serious look at your automobile policy?
Massachusetts is a no-fault state. By law, each motor vehicle insured in Massachusetts is automatically equipped with $8,000.00 of Personal Injury Protection (PIP) coverage. PIP pays for reasonable medical expenses, lost wages, and if applicable, reimbursement of replacement services, such as necessary household services.
As some of you may already know, PIP pays for the first $2,000.00 in medical bills. Once PIP exhausts that first $2,000.00 in coverage, it will then defer any outstanding and future medical bills to your health insurance provider. The remaining $6,000.00 in coverage is available for lost wages, and any medical expenses not covered by your health insurance carrier, such as deductibles, co-pays, and non-covered services. One caveat to this rule is that if you have Medicare or MassHealth, then PIP will pay the full $8,000.00 in medical expenses. The initial $2,000.00 exhaust is not applicable to Medicare or MassHealth recipients.
Once that $8,000.00 in PIP benefits is exhausted, (and believe me, it goes quickly), then you will have to pay all co-pays, deductibles, or non-covered services from your own pocket. In today’s economy, a majority of individuals do not have the extra money to pay these co-pays, deductibles, or non-covered services from their own pocket, and therefore, their health suffers because they cannot afford additional treatment.
If you select to have additional Medical Payments (Med Pay) coverage on your motor vehicle insurance policy, then you will have additional benefits to pay for those out-of-pocket expenses.
As previously mentioned, Med Pay coverage is optional and therefore you pay additional premiums for this coverage. However, the benefit outweighs the risk. For example, if you were involved in a motor vehicle accident and ruptured your ACL tendon in your leg or tore your rotator cuff in your shoulder, your medical expenses would presumably be in the thousands. You would need to seek treatment from an orthopedic surgeon who would order x-rays and MRIs, and you would most likely undergo a surgical procedure to repair your injury, which would require a hospital setting, orthopedic surgeon, anesthesia, follow-up care including physical therapy, etc. The medical bills add up quickly.
Available Med Pay coverage can be as little as $5,000.00 or upwards of $25,000.00 or higher.
There is another benefit to having Med Pay coverage. In Metropolitan Property and Casualty Ins. Co. v. Blue Cross and Blue Shield of Massachusetts, Inc., 451 Mass. 389 (2008), the Massachusetts Supreme Judicial Court held that when the health insurance policy specifically defers payment to Med Pay coverage, then, after the initial $2,000.00 in PIP is exhausted, instead of your medical bills being submitted to your health insurance provider, Med Pay will kick in first and pay your medical bills. This is great because typically a health insurance provider will attach a lien to your personal injury case. This means that the health insurance company is entitled to reimbursement for all the treatment it paid for you. The health insurance company would be reimbursed from the settlement of your case.
For additional information, please see:
Massachusetts Automobile Insurance Policy, Page 15, Part 6, Medical Payments
Commission of Insurance’s Clarification of Coordination of Benefits under M.G.L. c. 90 Section 34A and the Interrelationship by and among PIP, Health Insurance, and Medical Payments
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Drunk driving, also known as operating under the influence (OUI) of alcohol or drugs, is a serious crime that remains prevalent in our society.
Drunk driving is a mistake that is easily preventable but puts many lives at stake. Statistics say that in 2010, 10,228 people died in drunk driving crashes — one every 52 minutes — and 345,000 were injured in drunk driving crashes. (National Highway Traffic Safety Administration FARS data, 2011).
When people are convicted of drunk driving, it is usually not the first time they have driven under the influence of alcohol. In fact, on average a person driving under the influence has driven while under the influence eighty (80) times before their first arrest according to MADD statistics. This issue is especially relevant with the holiday season not too far away. There will undoubtedly be many holiday parties upcoming which will lead to people getting behind the wheel with a blood alcohol above the legal limit.
Massachusetts is an implied consent state. This means, if a breathalyzer (breath test) is requested by a police officer and declined by the driver, the Registry of Motor Vehicles automatically suspends that operator’s license. At the police station, you will be informed that refusing to take the breath test will result in an automatic license suspension of 6 months if it is your first offense, 3 years if this is your second offense, 5 years if this is your third offense and a lifetime loss of license if this is your fourth offense. The intent behind this law is to get people to take the breathalyzer.
A conviction of the operating under the influence of alcohol statute can carry up to two and one half years in jail as well as a fine of between five-hundred ($500.00) and five-thousand ($5,000.00) (M.G.L. c. 90 §24). A conviction will also carry a license suspension which is on top of any license loss instituted by the Registry of Motor Vehicles due to the declining of a breathalyzer test.
There are sometimes alternative dispositions available to an individual in an operating under the influence of alcohol charge that a skilled attorney can help negotiate. These dispositions can result in a charge being continued without a finding. This can be an excellent resolution as it results in the charge being “dismissed” if all conditions are followed and completed.
Recently, the Massachusetts State Police have stated that they would be increasing their presence on Routes 24 and I-195. After string of fatal crashes, State Police to step up patrols on Route 24 and I-195, boston.com, July 26, 2012.
These extra patrols will be between 8p.m and 4a.m. on Fridays and Saturdays. This is in direct response to an increase in motor vehicle accidents causing fatality and serious injury. Unfortunately, a large number of these accidents have been the result of driving under the influence of alcohol. David Procopio, a state police spokesperson, has said that forty percent (40%) of this year’s fatal crashes have been caused by drivers who are impaired by alcohol or drugs.
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A wrongful death claim has been filed against the producer and the stunt coordinator of the movie “The Expendables 2” after a stuntman was killed during the filming of the movie. The stuntman’s family is alleging that the producer and the stunt coordinator negligently failed to place the stuntman a safe distance from an explosion.
Wrongful death claims can arise from car accidents, motorcycle accidents, bus accidents, truck accidents, drunk driving accidents, accidents involving pedestrians, accidents involving cell phones and texting, construction accidents, work-related accidents, slip and falls, inadequate premises security, medical malpractice, defective products, food poisoning, fire/explosion accidents, etc.
The Massachusetts Wrongful Death Statute can be found at M.G.L. c. 229 § 1, et seq.
The Statute of Limitations, or deadline, to file a wrongful death claim in Massachusetts is “three (3) years from the date of death, or within three (3) years from the date when the deceased’s personal representative (executor or administrator) knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action.” M.G.L. c. 229 § 2.
In order to bring a wrongful death claim in Massachusetts, the estate of the decedent must appoint a personal representative. After the Probate Court has appointed the personal representative of the decedent’s estate, that person can then file a lawsuit against the at-fault party or parties.
A wrongful death claim in Massachusetts is founded on the common law principles of negligence, which are: 1) duty, 2) breach of duty, 3) causation, and 4) damages. The personal representative of the decedent’s estate must be able to prove that the at-fault party owed a duty to the decedent, breached that duty, and as a result of that breach, caused the decedent’s wrongful death.
Under the Massachusetts Wrongful Death Statute, damages may be awarded for the “loss of reasonable expected income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent.” M.G.L. c. 229 § 2. Funeral and burial expenses can also be awarded. In addition, punitive damages may also be awarded, if the decedent’s estate can prove that the wrongful death was caused by gross negligence (i.e. malicious, willful, wanton, or reckless conduct).
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Massachusetts Injury Lawyers Blog