First and foremost, you should call the police immediately. Obviously, if you or a passenger have sustained personal injury, obtain emergency medical assistance. You must report a hit and run accident to your own insurance company within 24 hours in order to preserve your right to coverage.
A lien is the legal right to repayment. Liens are established in motor vehicle cases in a few different ways. First, some medical providers establish liens to protect their right to the payment of outstanding medical bills from the settlement of a personal injury case. Second, personal health insurance companies establish liens to allow them to be reimbursed for any payments made for medical treatment in a motor vehicle accident case. Third, certain public benefits paid to motor vehicle accident victims may be recovered through liens. In all cases, Massachusetts law establishes procedures and rights of lien holders. If applicable, a lien reduces the amount of damages an accident victim receives.
In this set of circumstances, your work related injuries are compensable under the Workers' Compensation Act. At the same time, you may have a right against a negligent motor vehicle operator as well. The interrelationship between a workers' compensation case and a personal injury claim is always complicated. You must be careful, as you will be dealing with at least two different insurance companies and their claims personnel. As has been said, you shouldn't go it alone.
You are well advised to seek the aid of a competent attorney who can evaluate your motor vehicle accident claim, discuss with you the risks and benefits of settlement versus trial, and advise you as to your options. Of course, each case is different and varies regarding fault and damages. Decisions regarding whether to settle and what settlement offer to accept must be made on a case-by-case basis and in conjunction with an experienced attorney.
Oftentimes there is a dispute as to whether an accident occurred as a result of the negligence of two or more motor vehicle operators. A judge or jury may find comparative negligence when a driver's injuries are caused in part by his own negligence. In such cases, the judge or jury reduces the recovery by the percentage of comparative negligence. In short, a plaintiff's damages are reduced when he is at fault. If a plaintiff's comparative negligence exceeds 50 percent, he cannot recover at all.
Negligence occurs when a motor vehicle operator acts or fails to act so as to cause an unsafe condition and a collision. In some cases, negligence is established by virtue of an operator's violation of law. For example, if an operator travels through a red light or stop sign and causes a collision, he may be guilty of a traffic violation and liable for causing a motor vehicle accident. In other cases, negligence is established when an operator acts or fails to act appropriately under the circumstances. For example, under certain weather conditions the operation of a motor vehicle at the posted speed limit may nevertheless be unreasonable and therefore negligent, especially if an accident results. In most cases, a judge, jury, or arbitrator chosen by the parties will make the ultimate decision as to whether an operator's conduct constituted negligence.
In certain cases, the attorney will file a lawsuit in court in order to have a judge or jury decide disputes over fault or over plaintiff's damages. In these situations, even when the case goes to court, settlement negotiations continue. Eventually, if a matter is in litigation and cannot be settled in your best interest, it will have to be tried. A case could be tried to a judge, a jury or an arbitrator. Ultimately, a decision will be rendered concerning who was at fault an the accident, together with whether damages are due and how much they will be. Litigation is complicated, time-consuming and adversarial. Though most cases are settled, each case should be handled as though trial will be necessary. Accordingly, an injured person is well advised to seek the assistance of an attorney who is capable of bring a case to trial and is experienced in trial practice. Litigation is oftentimes a lengthy, frustrating and anxiety-producing process which is best avoided if possible. However, when one is forced to undertake litigation to obtain a reasonable recovery for his or her injuries, patience and an open and cooperative relationship between you and your attorney is essential.
First, if your losses from a motor vehicle accident are serious enough to consider pursuing an action, you should consult an experienced attorney who can advise you of your rights and represent your interests. The attorney can ensure that proper notices are filed with potentially responsible persons and their insurance companies and can begin to gather the necessary information to support your claim. In other words, the attorney will work with you to obtain information such as witness statements, records of medical treatment, and expense and lost wage data to illustrate to the insurance company the nature and seriousness of your injuries. At this stage, your attorney will gather facts necessary to prove that your injuries happened as the result of another party's negligence. In most cases, your attorney will present and advocate your case to the insurance company of the operator who caused your injuries. This is done with an eye toward opening settlement negotiations. In fact, in most cases, settlement discussions begin with a demand for compensation which the attorney formulates and conveys to the insurance company. The attorney establishes the demand based upon the nature and extent of your damages including: injuries, disabilities, time away from work, expenses, etc. The attorney's own experience guides the process of establishing a demand and settling the personal injury claim, in conjunction with the thoughts and wishes of the injured client. Assuming that one or more of the criteria set forth in the section above have been met, in some cases settlement discussions are not immediately successful in motivating the insurance company to offer a fair amount for an injured person's damages.
Aside from your recovery of medical expenses and lost wages under the personal injury protection coverage of the applicable insurance policy, you may be entitled to make a claim for pain and suffering if you are injured as a result of someone's negligent operation of a motor vehicle. To qualify, you must have sustained serious injuries. In other words, under Massachusetts law, your injuries must involve:
If you are seriously injured, you should consult an attorney experienced in the administration of claims and the litigation of motor vehicle accident cases.
If your motor vehicle is damaged in an accident, you may make a property damage claim against another negligent operator. In most cases, if the vehicle is a total loss, a property damage claim is paid in accordance with "book value." "Book value" is essentially the fair market value of the vehicle as published in the NADA Official Used Car Guide or similar publication. If the vehicle can be repaired, a property damage claim is paid on the basis of a repair appraisal. In some cases, the property damage settlement is simply a mathematical computation. In other cases, negotiations occur concerning the true value of the loss.
Medical records document the history of any injury, as well as a doctor's diagnosis and treatment of a particular medical problem. Medical records are important to establish the nature and severity of any injury as well as the treatment offered by a medical provider. Medical records are used to document a claim when settlement discussions are under way. Medical records also may be used as evidence if a trial is necessary. In short, medical records are used to illustrate damages sustained by a plaintiff in a motor vehicle accident case.
A declarations page, also known as a coverage selections page, is your insurance company's outline of the coverages purchased by you in your motor vehicle insurance policy. The declarations page reveals the limits of your coverage and the premium cost for such coverage. You should carefully evaluate your declarations page to determine whether you have sufficient coverage in each of the categories of coverage and/or whether you should purchase optional protection. "Full" coverage does not mean that you have purchased coverage in each category. Many people are surprised to learn that their "full" coverage is simply the compulsory coverage. Compulsory coverage may not provide adequate protection in the event of a serious injury to you, your passenger and/or family member or if a person alleges that you were negligent in the operation of your motor vehicle. As discussed in other sections above, be a good auto insurance consumer and have your agent or company explain your coverages to you. Make sure that you and your family are as well protected as possible.
"U" coverage means uninsured and/or underinsurance coverage. If you are injured as the result of another party's negligence, your attorney will seek compensation from the insurance company of that motor vehicle operator. However, in some cases, people who cause accidents are uninsured. In other situations, operators have too little insurance to pay a claim resulting from an injured person's serious injuries. In Massachusetts, motor vehicle operators are required to carry uninsurance and underinsurance benefits. In the event that you are injured as the result of the negligence of an uninsured driver, your own insurance coverage may be available to provide compensation for your injuries. Similarly, if the bodily injury limits of an negligent driver's policy are insufficient to pay your claim, your own underinsurance coverage is available if it exceeds the bodily injury coverage of the defendant. There are two important things to remember about "U" coverage. First, in order to preserve your rights to receive it, you must give prompt notice to your own insurance company of any accident or claim of injury. Second, you should carefully consider your need for optional uninsured and underinsurance coverage. Mandatory uninsured coverage is the minimum coverage. At this time it is $20,000.00 per person. Underinsurance will only be effective if purchased as an option in an amount greater than $20,000.00, since what is available is the difference between the bodily injury limits of the defendant and your underinsurance coverage. With "U" coverage, you are insuring against another operator's failure to carry adequate insurance. Accordingly, you should plan and purchase this coverage thoughtfully with the needs of you and your family in mind. Speak to your insurance agent or company about your coverages, and their adequacy and costs. Be a good consumer of auto insurance; don't let insurance purchasing decisions be made for you without your input.
Under Massachusetts law, after the first $2,000.00 of PIP coverage is exhausted to pay medical claims, an injured person's health insurance company must afford coverage for medical care for injuries received in a motor vehicle accident. If the health insurance company pays benefits under its plan but there remain outstanding bills or balances, the PIP insurance will resume payment up to the $8,000.00 maximum assuming that the remaining benefits have not otherwise been paid out to reimburse lost wages. If there is no personal health insurance coverage available, the PIP insurance continues payment after the first $2,000.00 of benefits is exhausted. However, the second layer of $6,000.00 of PIP is also available for lost wage replacement. Accordingly, the application of that layer to medical bills or to wages should be carefully evaluated.
Your personal injury protection benefit is designed to pay medical bills and lost wages. The coverage is $8,000.00. Whether used for the payment of medical bills, lost wages or other covered costs, PIP will pay no more than $8,000.00 in total for any combination of these benefits. In order to obtain lost wage benefits, you or your attorney must obtain documentation from your employer as to your period of absence, daily or weekly wages, as well as the availability of any salary continuance benefits within your employment. This information will assist the auto insurance carrier in determining the gross amount of your wage loss. The auto insurance carrier is required to pay you 75 percent of your unreimbursed average gross weekly wage loss. Again, it is essential that any medical or lost wage benefits claim be accompanied by a completed personal injury protection benefits application, medical documentation, and employer-completed lost time and lost wage documentation.
Medical payments coverage is optional, additional coverage to pay the costs of medical care over and above the Personal Injury Protection benefits. This coverage is coordinated with PIP medical protection. Speak to your insurance agent about this and how it might help you if you are seriously injured.
Certain coverages are compulsory. That means that the coverages are required to be purchased when your automobile is registered. The most important of these coverages are:
The minimum limits of coverage are mandated by law. Currently, personal injury protection coverage is $8,000.00 which is available to pay medical costs and wage replacement. Uninsurance benefits are required to be maintained at the $20,000.00 level. Bodily injury coverage is likewise required to be $20,000.00. Periodically, these limits are increased. Of course, you may purchase coverages above and beyond these minimum limits. As will be discussed below, you should carefully consider the needs of you and your family and wisely buy insurance coverage like you would any other consumer product or service.
Your first meeting with an attorney will serve several purposes. First, it will allow you and your lawyer a chance to get to know one another and to establish a rapport. During the case, it is crucial that there be clear, open communication between the lawyer and the client. Second, the meeting will allow the attorney to provide an overview of procedures, benefits and rights available to the client. For example, the lawyer will explain how PIP works and such matters as coordination of benefits between PIP and health insurance, if any. Third, the meeting is the beginning of fact-finding concerning the case. Accordingly, it is important that the client bring to the meeting as much information as is possible concerning the accident. The client should be prepared to describe completely the happening of the accident as well as all injuries received with specificity. In addition, it is extremely helpful to have any documents available which relate to the accident, injuries and medical treatment and insurance coverage. Examples are:
At the end of the first meeting, a definitive plan should be in place to provide notices to all concerned parties, commence application for PIP benefits payments and conduct further accident investigation as is necessary.
If your own insurance company's adjuster contacts you (or the PIP carrier for the car in which you were riding), you must cooperate. Be advised, though, that the adjuster will want to record your discussion and will then hold you to your statement later regarding your injuries, property damage and how your accident occurred. If an insurance adjuster for another operator's liability insurance carrier contacts you, you have no obligation to speak with him or her and you may defer any contact until you seek legal assistance. In any case, be careful and be sure not to do anything until you speak to an attorney.
Under Massachusetts Law, if you are involved in a motor vehicle accident which results in personal injury or damage to property of over $1,000.00 you must notify the police department. In addition, to preserve your rights, you must notify your own insurance company about your involvement in an accident within one (1) business day. Indeed, if you are involved in an accident in someone else's car, you should make sure that the motor vehicle insurance company for that car as well as your own insurance company is notified of the details of the incident.
One of the ways in which you must cooperate with your own insurance company is to provide prompt notice of accidents or injuries. (In a hit and run situation, you must give notice within 24 hours; in all cases notice should be given within one (1) business day.) Also, you must submit to the insurance company's request to provide a written or recorded statement concerning the happening of an accident or your receipt of injuries. In addition, you must make yourself available for an independent medical examination if the insurance company desires to evaluate the nature and extent of your injuries. Finally, if someone alleges you caused an accident by sending you a notice or serving you a complaint, you must immediately notify your own insurance company.
The auto insurance carrier for the motor vehicle in which an injured person was either an operator or passenger is responsible for the initial payment of bills for medical care. In other words, if you are injured while a passenger, the insurance company for the car in which you were riding while injured would be responsible for the payment of your bills (up to the limits of the PIP coverage as outlined below), even though you might have an auto insurance policy covering your own motor vehicle. Likewise, the operator of the vehicle is covered by the policy on the vehicle he is operating, even though the accident may have been his or her fault. That is why PIP is also called "no fault" insurance. (Please do not confuse PIP or no-fault payments with the liability coverage of a negligent driver which will be explained further below.) The process for obtaining the payment of medical bills for motor vehicle accident injuries is fairly simple. However, coordination of benefits can be complicated. To open a personal injury protection benefits claim, you must file an application for benefits. The application requests information concerning how the accident happened, the involved parties, your employment status and a description of your injuries. Once the claim is opened, your medical providers or your attorney can submit bills with supporting medical documentation directly to the insurance carrier for payment or reimbursement. There is a limit, however, to how much the motor vehicle insurance policy will pay for medical care.
Generally speaking, the motor vehicle insurance policy personal injury protection (PIP) provisions will cover the cost of any medical care which is reasonable, necessary and related to injuries arising out of your motor vehicle accident. Certainly, emergency room care, chiropractic treatment, physical therapy, orthopedic, neurologic or neurosurgical consultation and other specialist care is generally covered. Even the costs of prescription medication, crutches, neck collars, etc., are reimbursable under the insurance policy.
It is essential that you provide the doctor with a complete history concerning the accident and the onset of your medical problems. In other words, you should explain what happened, how you were injured, your complaints or symptoms and any other relevant information. The data you provide to a doctor or emergency room attendant not only assists with the diagnosis and treatment of your injuries but establishes a record to document your injuries, the need for treatment, and the appropriateness of care for insurance claim purposes. In some cases, medical records ultimately become evidence which can be offered to prove damages you suffered as a result of a motor vehicle accident.
To begin with, as will be described below, every motor vehicle registered in the Commonwealth of Massachusetts is required to carry so-called "no fault" insurance. This means that any person injured as a result of a motor vehicle accident has available a form of health insurance to cover the cost of the treatment of injuries suffered in a motor vehicle accident. (However, "no fault" coverage is not available in motorcycle insurance.) Therefore, if you or a family member is injured in a motor vehicle accident, you should seek appropriate medical care from your local hospital emergency department, your general or primary care physician, or some other provider who can render medical assistance appropriate for your injuries as soon as possible. Sometimes, the onset of pain or other symptoms may not occur immediately after an auto accident. If symptoms develop or an injury intensifies, it is advisable to be "checked out." It is certainly sensible to arrange for care if medical problems develop even several days following an accident.
Your first concern should be your health and safety. You should always wear a safety belt. If you have the misfortune of being injured in a motor vehicle accident, you should seek medical attention immediately. Indeed, if you or anyone is injured in an accident, steps should be taken to summon the police to the accident scene so that first aid or emergency treatment can be rendered. It is also important to obtain information concerning the other parties involved in the motor vehicle accident as well as obtain the facts concerning how the incident occurred. You should keep a pencil and note pad in your glove compartment for this purpose. At a minimum, the information you should obtain includes:
You must report the accident to your automobile insurance carrier and agent as soon as possible. This should certainly be done within one (1) business day of the incident. In most cases it is sensible to file a report of the accident with the police department of the town in which the incident occurred.
We don't use actors, gimmicks or cheap slogans to reach clients. We do it the old fashioned way. Our clients are served by knowledgeable and experienced trial lawyers who are not afraid to go to court if necessary to get maximum results. Our clients and their friends and families come back to us time and again because of the service we provide and the outcomes we achieve. Our reputation in the legal community speaks for itself.
If you are involved in an automobile accident, Massachusetts law provides a number of rights, benefits and procedures that affect how you recover for any losses or injuries you sustain. Your rights are governed by both statute and your insurance policy, the terms of which are often difficult to interpret. Your rights involve possible claims against the person who caused the accident and his insurance company, as well as for no-fault benefits to cover your medical care and lost wages from your own policy. In short, automobile law in Massachusetts involves a combination of claims processing, information gathering, advocacy in settlement negotiations, and perhaps court. If you are injured in a motor vehicle accident, your primary concern should be your health. On the other hand, the processing of your claim and preservation of your rights ought to be done by experienced professionals who can help you navigate this complex and highly regulated system. Massachusetts automobile accident law dramatically affects the extent to which you obtain remedies and relief if injured in a motor vehicle accident.
TRANSCRIPT
Host:
Welcome to the PSRB Lawcast from the offices of Pellegrini, Seely, Ryan and Blakesley. I'm your host Adam Wright and each episode we bring you information about the various aspects of personal injury law and we understand that approaching a law firm to help you can often be intimidating, which is why this podcast is designed to make personal injury law just a bit easier to understand and to help you navigate the process with greater comfort.
Remember every case is different and in order for us to provide you with accurate information and advice relevant to your specific circumstances, it's important to set up an appointment with one of our attorneys to meet in person. The information presented today is general information purposes only.
Today we're going to be discussing a critical element of the personal injury claim process, violence, and our guest attorney today to help break it down for us is Charlie Casartello. The firm's managing partner since 1990, Attorney Casartello has committed his professional life to representing injured workers. Charlie has concentrated his practice in personal injury litigation, workers' compensation and social security law, and helping people in labor unions throughout Massachusetts. Charlie's been recognized for his incredible work in issues of workers' health and safety and has been awarded the prestigious William Pinchon Award given to individuals whose lives and achievements typify the ideals of promoting citizenship and the building of better communities in Western Massachusetts. Charlie has also received the Massachusetts Bar Association Community Service Award and was recently inducted in the College of Workers' Compensation Attorneys. A skilled negotiator dedicated to serving his clients by focusing on their individual needs, he is known as a thorough, aggressive, and responsible advocate and we so appreciate him taking some time out of his busy day to talk about this important issue. Hey Charlie.
[00:02:10.064] Attorney Charles Casartello:
Hi Adam. How are you?
[00:02:12.460] Host:
Very well, thanks. Good. In this new connected world, privacy and intrusive technology are things that a lot of folks are concerned with and in the area of personal injury claims, unfortunately that becomes part of the process and that is surveillance. It's a big part of going through the claim process and indeed, Big Brother can be watching and probably is, or at least your insurance company can be watching you. So, when somebody claims a workers' compensation disability and maintains that they can't work, what will the insurance company do to try to disprove that claim and how do they use surveillance?
[00:02:56.504] Attorney Charles Casartello:
Surveillance is part of the overall concept of investigation and any claimant can be sure that the insurance company is going to undertake an investigation and that can involve a number of different elements. Surveillance is one, Independent medical examination is another, for example.
[00:03:16.534] Attorney Charles Casartello:
Surveillance has been going on for many years in my experience. Surveillance is typically done by a private investigator hired by an insurance company to do an activity check. To make sure you are injured. To make sure a person is as disabled or limited as they claim. Certainly, if an injured worker is working when they are receiving temporary total incapacity benefits, that's a huge problem. It's not simply damaging for a claim. It can be the basis for an allegation of fraud. And that's rare.
What the insurance company is most often looking for is a claimant engaging in physical activity that's inconsistent with their claim of disability. So, for example, if a claimant has limitations of no lifting more than five pounds as ordered by their doctor and that claimant is videotaped at a gym with a barbell in excess of five pounds, it could be a problem. Anything like that, any inconsistency has to be explained. It could be an explanation. But oftentimes the picture is damaging, and no amount of context can make that understandable for a judge.
[00:04:41.939] Host:
Sure. So what likelihood an insurance company is going to send an investigator to do surveillance?
[00:04:47.305] Attorney Charles Casartello:
I've talked to insurance company lawyers on the other side of cases who say that if a claim goes on more than several weeks, there's about a hundred percent chance that some level of activity check is going to be done.
[00:05:02.492] Host:
Wow. So, what kind of things are they looking for? Obviously, they want to take a look at whether or not you're being truthful in what you say you can and cannot do. How do they do that? Can they come onto your property? Can they use photographic means? How do they go about collecting that information?
[00:05:22.084] Attorney Charles Casartello:
Let me give you kind of an overview from what I have seen when investigators produce information in a workers compensation case. The first thing that happens is the insurance company adjuster hires an investigator or the adjuster provides the name, address, other biographical information about the claimant.
The investigator then begins a search online these days of any kind of information about the claimant. An investigator might start with a check of public records, for example, real estate records, business records, anything that might show the name of the claimant. For example, if an investigator checks the Secretary of State's office and finds that the name of the claimant is associated with a company, a DBA, as an owner or an officer, that might lead to further information that the injured worker has business interests. And that curiosity on the part of the investigator can lead to then ferreting out of other information all designed to question whether the injured worker has the capability to do work.
[00:06:41.093] Host:
So, for example, if a worker is doing construction for a company and is injured on the job, but they discover that he has a separate contracting company on the side, they'll know potentially that he has the opportunity to work on the side at his business.
[00:06:59.925] Attorney Charles Casartello:
Or another example might be that a construction worker has a side gig as a disc jockey and the construction worker has some DBA status, doing business as status, has an actual company, but the disc jockey earns money because the disc jockey is unable to do his construction labor job because of an injury, but is able to do some weekend wedding or party gigs, that's a problem.
[00:07:38.164] Attorney Charles Casartello:
And if an investigator is able to get onto that information, it can be really troublesome. And sometimes that kind of thing happens because the injured worker is simply unaware that being involved in another activity could compromise their workers' compensation case because the injured worker thinks, well, it's clear, everybody concedes I can't do my construction labor job, so what is it that causes a problem if I'm able to spin records on a weekend for two hours? Right.
[00:08:09.923] Host:
And that could be anything from lifting speakers and that kind of thing to even just the money that they make going against the potential claim, correct?
[00:08:18.495] Attorney Charles Casartello:
That's right. It's the earning, not the physical activity alone that can create the problem. But a lot of surveillance is directed at the observation of a claimant. So, they start with a record check. They'll look at social media postings, whether it's Facebook, Instagram, or what have you, but then onto the individual's physical location. So, the investigator might find the place where the injured worker lives and then stake it out like on TV, just park a car and wait for the injured worker to appear. And then the investigator will observe the injured worker and videotape any kind of activity that appears to be inconsistent with a claim of incapacity to earn.
[00:09:10.892] Host:
So, if you're outside trimming your hedges, or if you're playing ball with your kid or something like that, run your roof, cleaning out your gutters.
[00:09:18.942] Attorney Charles Casartello:
If you're at Costco buying product and you carry a case of water out to the car, that injured worker could have that information disclosed to a judge if the insurance company thinks that activity is inconsistent with the claim of incapacity to earn or physical disability.
[00:09:39.360] Host:
In one of our other episodes, Mike Cardaropoli, one of our attorneys, had quoted Don Blakesley as saying, if you're going to go buy a six pack of beer, bring it in one can at a time.
[00:09:50.920] Host:
Now can they, obviously everybody's concerned about privacy, can they come onto your property? No, that's trespassing. Okay. So, they have to do it from a distance or if you're in a public place.
[00:10:00.927] Attorney Charles Casartello:
Correct. But with today's technology, you can only imagine the capability they have to videotape a person from a great distance. I have seen incredible feats of investigation that my client had no idea was happening because the person, because the investigator was so far away and had such technology that was able to document what was happening. Sometimes that's, it's useless. It's completely innocuous activity. But sometimes if a person, an injured worker is doing something, even on a day, on a good day for a brief moment that seems to someone to be inconsistent with a claim of disability, you could imagine that that's going to be blown up on a 27-inch television screen for a judge. And then that has to be explained.
[00:11:00.799] Host:
Are they allowed to if they're not on your property, let's say they're in the street?
[00:11:09.017] Attorney Charles Casartello:
I would say that if the person is in public, yes.
[00:11:15.801] Attorney Charles Casartello:
But if the person is not in public, no. So, there's no trespassing. And if for example, an injured worker is on the porch and visible from the street, a picture could be taken. It could be taken. If the person is in their kitchen and is not observable from the street, then I would say, no, that information cannot be obtained by the investigator.
[00:11:43.999] Host:
I guess my question is what if they are in their kitchen and visible from the street, right?
[00:12:02.950] Attorney Charles Casartello:
So you're in your kitchen, you're lifting a giant lobster pot and the investigator's in the street, not on your property, that counts as something he can- I would say yes, that person's in public view.
[00:11:43.999] Host:
What about recording conversation? Are they allowed to do that?
[00:12:02.950] Attorney Charles Casartello:
No, not without the permission of the person being recorded. In fact, it's a crime in Massachusetts for someone to surreptitiously record. Actually, it's called intercept communication by electronic or other means. So without, you can't tape somebody without their knowledge. You certainly can't record someone without their permission. So that would be off limits.
[00:12:30.439] Host:
So you don't have to worry about your phones being tapped or- No. Would they get records from your phone company that would put you in certain locations or is that something they would, they would probably need a court order for something like that? You would hope.
[00:12:42.994] Attorney Charles Casartello:
You would hope. You would hope since law enforcement, I think, has to do that, you would expect a private investigator to have to do that. I would expect that a telephone company would be very apprehensive to provide that kind of private information about- Some of that's personal information, yeah.
[00:12:59.076] Host:
Some of that's personal information, yeah.
[00:13:01.422] Attorney Charles Casartello:
However, if there's an order from a judge to disclose that information and it's properly sought by an insurance company or the other way around, frankly, in a contested liability case, could the employee try to secure that kind of information to document their presence at a location where an accident occurred? Yeah. And with a judicial order, that information may be able to be accessed.
[00:13:27.949] Host:
What about, so we've said that they can document your actions outside in your yard, in a store, somewhere public, and they follow you in their car. Yes. I think that would be probably something that, we see that on TV all the time, but that would be potentially difficult for people to get a handle on knowing that they're being followed.
[00:13:52.334] Attorney Charles Casartello:
It's creepy, but it's common. It's usual for the investigator to set up at the claimant's home and then to follow that claimant if the person departs in the car, goes to the bank, goes to the Dunkin' Donuts, goes to Costco, and then really frustrating for me as a parent is follows the person to their child's or their grandchild's game and stakes out that kind of location. The investigator is supposed to check in with the local police department before the investigation begins, so that law enforcement is aware that this person is lurking around. Because what I tell my clients to do when they become aware of the presence of investigators to call the cops, call the police, especially if they're in a situation where the injured worker is accompanied by children. Whether it's at home, in the yard, soccer game, what have you.
[00:14:56.948] Host:
Or I would think also if it's a woman and all of a sudden, now is this an investigator from the insurance company or is this a stalker? Is this some kind of creep? Right. I mean, that's got to be a very delicate situation and I got to think it could be potentially very scary for somebody.
[00:15:10.499] Attorney Charles Casartello:
It is. The insurance company investigator is supposed to check in, they don't always, but the first thing that I tell my clients is do not confront the person, do not confront the investigator, call local law enforcement. And you have them, particularly if some activity has happened that really intimidates or threatens the injured worker, call law enforcement. You do not confront the other person for a variety of reasons, for your own safety, but also so that you're not accused of taking some action that could be a problem.
[00:15:47.505] Host:
And I think also knowing that this is going to happen, I mean, you said there's a hundred percent chance potentially that someone's going to follow you. That would make you at least more aware that this could potentially happen. If you're talking to your attorney, your attorney says, look, this is likely going to happen. Now at least you're aware of it. And so if you do notice somebody, as you said, call the cops, but you may not have to worry as much as you would if you didn't know this was going to happen. Right.
[00:16:16.615] Attorney Charles Casartello:
Yeah. So be forewarned, is forearmed. Sure. To be prepared and know that it's creepy, but it's part of the playbook. Just as an independent medical examination is part of the insurance company, the defense attorney's playbook. It's likely to happen. You just have to be prepared for it. You have to be able to conduct yourself appropriately and not create additional problems for yourself by acting inappropriately when dealing with these situations.
[00:16:48.154] Host:
Let's talk a little bit about social media. All of us have Facebook pages or maybe we're on Instagram or TikTok. I have to think that that is something that an investigator would look very closely at because people like to post what they're doing. And so is that, that's fair game, I would think.
[00:17:04.439] Attorney Charles Casartello:
It's a treasure trove of information for an investigator, depending upon how active a person is on social media. And again, context is really important. A person could have a picture of themselves holding a 35-pound striper that they caught in Nantucket Sound seven years ago. But if it's on the post as though it happened yesterday, it's a problem and it's got to be explained. On the other hand, if it's a 35-pound striper that was caught yesterday and the injured worker has limitations of no lifting more than five pounds, it's going to be a problem and it's self posted, it's self authenticated. So that kind of information isn't even investigated, it is self published. So it's a problem for people because again, context is really important. A person having a good day at the beach out of 364 crappy ones, if that's the day that the investigator is around, the information is going to be out of context and it's not going to be fully representative of what the injured worker's day to day life is really like.
[00:18:24.443] Host:
I always say self imposed hardship is no hardship at all. Now what about for someone who thinks they're being smarter than, right? And so they're going to put something on Facebook, but their Facebook account is quote private, or at least only available to their friends. How do investigators get around that? Can they get around that?
[00:18:43.394] Attorney Charles Casartello:
I don't know how they get around it, but I know they get around it.
[00:18:50.667] Attorney Charles Casartello:
It's a private, it's private. I don't either, but here it is. There's 90 pages of pictures from Facebook and now we've got to explain what all of that stuff means.
[00:19:03.441] Host:
Somebody once told me that never put anything online that you wouldn't expect to see in the front page of the Springfield paper. And I think this is good advice regardless of whether or not you're under surveillance from an insurance company. Definitely. We're living in this incredibly open age of information. It's true. I mean, you have to be very judicious about what you put out there about yourself.
[00:19:32.449] Attorney Charles Casartello:
I have heard that about young people applying for jobs. That prospective employers do similar kinds of checking and kids with red solo cups on social media can create problems for themselves for prospective employers. I think that's going far, but it's an issue. And it's again, it's self-posted, self-authenticated information. It's not something that somebody dug up and had to kind of fashion in order to create a problem for a claimant.
[00:20:14.451] Host:
So I'm sure you've seen cases where the information presented by an investigator is pretty difficult to explain to a judge.
[00:20:26.432] Attorney Charles Casartello:
I have. I've had situations that my client has had to explain. Again, I use the same phrase over and over again, I apologize, but explain or give context and sometimes the judge understands, but sometimes the information is so vivid that there's no explanation that the judge is going to buy. On the other hand, I've had a surveillance product, videotape of people that I think is completely benign, that is harmless to the injured worker. A person walking on a street is not going to be harmful to that person's case unless they've claimed that they cannot walk.
[00:21:31.182] Attorney Charles Casartello:
So the information detected by the investigator has to be contradictory to what the injured worker is saying about their capability to do physical stuff or other stuff for it to be really harmful to the case, in my view.
[00:21:47.905] Host:
So something like if, and I would think because rehab requires oftentimes someone to do some exercise or some mobility to try to strengthen the injury. And so context is everything.
[00:22:03.194] Attorney Charles Casartello:
And that's a perfect example. If a guy is over at LA Fitness and working out, that in and of itself doesn't mean that the person's not disabled. The person could be there under the direction of a doctor and doing the things that are necessary to recover. On the other hand, if the guy's over there looking like Arnold Schwarzenegger, it's a different, that really dates me. That can be a real problem for that injured worker.
So even if a person is videotaped on their street, walking happily on a beautiful spring day, it doesn't mean that's reflective of seven days a week, 12 months a year, 365 days.
People have good days and bad days. Even people with debilitating, chronic pain have an occasional day where they feel like they've got to get out of the cabin. And if that's the day that the investigator is present and videotapes, or even if that's the day out of many days of surveillance that the detective chooses to videotape and then produce to the insurance company that information, it's not reflective of what that person's true capability to work and earn is. So that's the sort of a context that has to be explained. Now we'd all love to avoid having to give such explanations, but when that kind of thing happens, the judge is going to hear all sides of the story from the injured worker. The picture is not in and of itself harmful. It's the picture if it is inconsistent and not explainable. Not in context.
[00:24:12.338] Host:
Picture itself is not determinative. I mean, I think all of this goes to the bigger point of why it's so important not to go into a workers' compensation case alone. Why you need to have a qualified, experienced advocate by your side. There's just too much that can go wrong.
[00:24:32.065] Attorney Charles Casartello:
Well, and I think the topic of surveillance indicates to me so forcefully that workers' compensation is an adversarial system. It's a dispute system. The insurance company is not in the corner of the injured worker. And the idea that surveillance happens in almost every case where the disability lasts for longer than a month is indicative of the fact that the insurance company is not going to trust the injured worker and take the injured worker at their word. It's an adversarial system. And so an injured worker should be advised, should be fully aware of what happens in these kinds of cases, should be informed of what the realities are so that the injured worker can act accordingly.
[00:25:19.450] Host:
You know, we're talking about this in the context of injured workers and workers' compensation. Is this applicable to other forms of personal injury law? So for example, somebody's in a car accident.
[00:25:31.853] Host:
And says they can't move their neck and they're looking for compensation. Absolutely.
[00:25:36.342] Attorney Charles Casartello:
Absolutely. Yeah. Yes. And in any kind of a personal injury matter, surveillance is available to the insurance company or to the defense counsel who's representing the interests of the insurance company or a defendant. But in workers' compensation, it happens frequently. Yeah.
[00:25:57.807] Host:
Well, this is all fascinating information. And you're right, it's not a little creepy, but it's certainly something that people need to be aware of. Charlie Casartello from PSRB. If you want to contact Charlie, you can do so by calling our phone number, 800-75-5399. PSRBlaw.com is where you find us online. And you could even email him personally at ccascartello.pellegriniasealy.com. Thanks Charlie. You're welcome, man.
[00:26:25.448] Attorney Charles Casartello:
It was a pleasure.
In this set of circumstances, your work related injuries are compensable under the Workers' Compensation Act. At the same time, you may have a right against a negligent motor vehicle operator as well. The interrelationship between a workers' compensation case and a personal injury claim is always complicated. You must be careful, as you will be dealing with at least two different insurance companies and their claims personnel. As has been said, you shouldn't go it alone.
The original Workers' Compensation Act came into existence in Massachusetts in 1911. It replaced a system in which workers who were injured on the job were required to file lawsuits and prove negligence on the part of their employers before they could recover anything. In the old system, large numbers of injured workers were left without a remedy because either the injury was not the result of the employer's negligence or it took so long to pursue the lawsuit that the employee was unable to support himself or herself while waiting. The Legislature decided that this situation was not tolerable. The Legislature created a system in which every worker who received an injury "arising out of and in the course of his employment" would be entitled to a schedule of benefits which provide support to the injured worker during disability and afford the worker some compensation for permanent injuries and medical expenses. Today, the Workers' Compensation Act makes it unnecessary to prove that the employer was negligent. In the new system, the injured worker need only show that the injury happened at work.
Every injury, no matter how seemingly insignificant, should be reported to your supervisor, the medical department at your company or shop, or some other person in authority. Most employers have a system of filing written reports so as to document accidents or injuries. However, if your workplace does not have such a system, you should insist that whomever you report the matter to write it down and provide you with a copy. You should also make note of any witnesses.
Unless your employer or the workers' compensation insurer has entered into what is called a "Preferred Provider Agreement," then you are entitled to seek medical attention from whatever health care provider that you believe to be appropriate. If a "Preferred Provider" exists, you may be required to have your first treatment at the "preferred" facility, after which you can change to the physician of your choice. Once you choose a doctor, you may need permission from the insurer or the Department of Industrial Accidents to change to another doctor specializing in the same field of medicine. In addition, all continuing medical treatment is now subject to "Utilization Review" under which the insurance company hires a private agency to decide whether tests, surgery, physical therapy, or other proposed care should be approved. If treatment is disapproved you may appeal to the Department of Industrial Accidents by filing a claim that asks a judge to approve the treatment.
Chiropractic expenses are covered under the Workers' Compensation Act subject to the same limitations as discussed in the preceding answer.
The amount that a doctor can charge in workers' compensation cases is strictly regulated and in most instances is considerably less than that doctor may be able to charge to a private health insurer or self-paying individual. In addition, the treatment of patients under workers' compensation involves problems of obtaining approval for specific treatments, extra time and effort devoted to paperwork, and occasional involvement in litigation. Many physicians, particularly those in highly skilled specialties such as orthopedics or neurosurgery, have discontinued or restricted the numbers of cases that they will take under workers' compensation.
Fortunately, not all physicians have turned their backs on workers' compensation recipients. If you are a member of an HMO, the best place to start is your primary care physician who may be able to refer you directly to a provider within the area of specialty that you need. You might also secure an appropriate referral from an emergency room. Probably the best source of information as to the availability of doctors who will treat patients under workers' compensation is a qualified workers' compensation attorney who deals with these issues on a daily basis and can probably provide you with a list of doctors who he or she knows will accept patients under the Workers' Compensation Act.
You can. As noted earlier, although you may be required to report for one visit to a clinic designated by your employer, the choice of medical treatment thereafter is entirely yours. While these employer-designated clinics do perform a valuable service in making treatment available for short-term types of injuries, you should know that many of these facilities operate like a "company doctor" and, as such, are often more interested in satisfying an employer's needs than in fairly and objectively treating the patient. If you suspect that this is the case, you have every right to see a doctor of your own choice.
No. There is no provision in our workers' compensation law that requires that you cooperate with a so-called "medical management nurse." Not only can you stop the nurse from coming to the doctor with you, but you are completely within your rights to tell the nurse not to work on your case anymore. Sometimes these nurses are helpful in securing access to doctors, medication, or medical appliances. However, some unscrupulous nurses will attempt to interfere with the doctor-patient relationship, and may go so far as to misrepresent certain important facts about the availability of light-duty work and so forth in an effort to persuade your doctor to release you from care before the doctor would ordinarily do so. A nurse who is inclined to do this is not working in your best interest and should be discharged.
Any travel that you undertake to secure medical treatment should be reimbursed by the insurance company on a per mile basis. Currently, insurers are reimbursing at the rate of approximately 45 cents per mile. This includes travel to the doctor's office, physical therapist, hospital, independent medical examination, or even travel to the pharmacy to purchase medication.
Sometimes unscrupulous claims adjusters will deny you access to reasonable and necessary medical treatment as a means of limiting your ability to prove continued incapacity. They will tell you that you can't see a doctor and then discontinue your benefits because you do not have a doctor's opinion that supports disability. This is unfair, unreasonable, and probably illegal. If this happens, you have every right to file a claim with the Department of Industrial Accidents to force the insurer to comply with its legal obligations.
If you lose more than five (5) days from work, whether or not they are consecutive, then you are entitled to receive weekly compensation benefits. If the total period of your disability is less than twenty-one (21) days, then your entitlement to benefits begins after the fifth day of disability and is not retroactive to the first day. However, if you remain out of work for twenty-one (21) days or more, then you will receive benefits from the first day that you began losing time.
The law requires that your employer file a report of your injury with its workers' compensation insurer and the Department of Industrial Accidents. This must be done within seven (7) calendar days of the time that your employer is aware that you have been injured and have been incapacitated for more than five (5) days. Once the workers' compensation insurer receives notice of your injury from your employer, it must either begin to pay benefits or issue a written denial of compensation within fourteen (14) days.
The only way to be sure is to see the claim form. You should also find out the date on which the claim form was sent to the insurance company. Some companies attempt to avoid paying penalties by back date-stamping materials so as to make it appear that they are complying with the time deadlines when they are not. Under the workers' compensation statute, your employer is required to send you a copy of its notice to the insurer. Demand one if you don't receive it.
The law requires that under those circumstances, the insurer must pay you a penalty of $200.00. If the delay extends beyond sixty (60) days, the insurer must pay an additional sizable penalty to the Department of Industrial Accidents and that penalty can range from $2,000.00 to $10,000.00, depending upon the length of the delay.
You are well advised to have professional advice as early as possible so that you are fully aware of your rights at every stage of the proceedings. This is particularly important in view of ongoing and continuing changes in the law. You absolutely cannot rely on the insurance company to give you accurate advice as to your rights under the Workers' Compensation Act. It is important to know that attorneys' fees are strictly regulated by the law and that under no circumstances is an attorney allowed to charge a client directly for his or her services in a workers' compensation case. In most instances, all attorney fees charged by lawyers for representing employees are paid by the insurance company, either according to a schedule defined by the law, or as a percentage of a negotiated lump sum settlement. In some limited cases, a portion of the attorney's fee could be deducted from an amount of benefits awarded by an administrative judge.
The law very strictly regulates attorneys' fees. If a lawyer asks you to pay a fee or a retainer, then he or she is probably violating the law and you should bring that to the lawyer's attention. If he or she persists, you should contact another lawyer.
The first thing that you should do is check the date on the denial form and retain the envelope in which it was sent. These may become important to you if a penalty is at issue. The form that you will receive should specifically state the reasons that the insurance company has denied your claim. Thankfully, the insurance company is not the final authority in these cases and you have a right to file a claim with the Department of Industrial Accidents. This adjudicative department will eventually assign an administrative judge to hear your case and decide whether you are entitled to receive compensation benefits. It is very important that you document your claim for workers' compensation benefits. You should save a copy of any accident report, disability note, first aid register, or medical document which can be submitted with your claim or used by your attorney, if need be, in a proceeding at the Department of Industrial Accidents.
Usually, within two to three weeks, your case will be assigned for a conciliation, which is a meeting between you, your lawyer, a representative of the insurance company, and a Department of Industrial Accidents conciliator whose job it is to attempt to encourage the parties to voluntarily resolve their differences and avoid the necessity of bringing the case in front of a judge. The conciliator will listen to you and will review and place in the file any medical reports or other documents which are offered to him or her in support of your claim. The conciliator will also receive similar information from the insurer. In addition, if there is an issue as to the extent to which you are disabled, then representatives from both sides will be asked to submit a document which represents the "last best offer" of compensation. Under this procedure, if you and your attorney agree that your disability is only partial, and that you can perform some type of work, then at the time of the conciliation, you might off
The present state of the law is such that the conciliator can only make a recommendation to the judge who will eventually hear the case. The conciliator does not have the authority to make any binding orders awarding or denying compensation. That responsibility is the sole province of an administrative judge of the Department of Industrial Accidents.
At that point, the conciliator will record his or her recommendation in the file and send it back to Boston where your matter will be assigned to a judge for a proceeding known as a conference.
The worker's compensation law currently requires that once a conciliator refers the case to the Industrial Accident Board, it will be assigned to a judge "immediately." As a practical matter, the time from conciliation to conference is entirely dependent upon the number of cases awaiting assignment. When the backlog is small, you can expect a conference in as little as a few weeks, but the delay has been as long as six months during very busy periods.
A conference is an informal proceeding at which the judge is empowered to make an enforceable order that the insurer pay benefits. The judge will enter an order if he or she receives documentation in the form of medical reports or other information which persuades the judge that payment of compensation is appropriate. If persuaded, the judge will prepare a document called an "Order of Payment." If not sufficiently convinced by the documents and the arguments that he or she hears, the judge will issue a document called a "Denial of Compensation." If the "last best offer" procedure was used at the conciliation, then the judge is required to choose between the offer made by the insurer and the offer made by the employee. The judge may also choose some figure other than the ones submitted by the parties, so long as the judge explains reasons for doing so.
Either party may appeal the decision of a conference judge by requesting a hearing which is a formal trial at which witnesses testify under oath and are cross-examined. If a conference order relating to a medical issue is appealed, then the party requesting the appeal must pay a filing fee of $350.00. This fee will be used to pay for an "impartial physician" to examine you. Once this examination has been conducted and the impartial doctor's report has been sent to the judge, no other medical evidence will be admissible at the hearing unless the judge decides that the medical issue before him is unusually complicated or that the report of the impartial doctor is inadequate.
No. Even if the insurer disagrees with the Order of Payment, it must comply with that order and pay benefits while the appeal is pending.
If the date of your injury is on or after December 23, 1991, and if you are totally disabled, the insurer must pay you weekly compensation which equals sixty (60) percent of your average weekly wage, so long as that figure does not exceed the maximum amount payable. The weekly maximum is equal to the average weekly wage in the Commonwealth as determined on October 1 of each year by the director of the Department of Employment Security. The weekly maximum has increased steadily each year and is currently in excess of $600.00 per week. For injury dates prior to December 23, 1991, your rate is 66 and 2/3 percent of your average weekly wage, subject to the same maximum.
Workers' compensation benefits are not subject to federal, state, local, or social security tax.
In general, the average weekly wage is determined by adding up the previous 52 weeks of salary and dividing by 52. If your term of employment has been less than a year, but is still more than a few weeks, then you simply add up the total amount that you received during the entire period of your employment and divide by the total number of weeks that you worked. When you are adding up these weeks, be sure to include weeks in which you worked overtime, received additional commissions, or other benefits. Average weekly wage includes all of these things and is not limited to a standard 40 hour week. If, however, the period that you are using for your calculation includes some clearly unusual weeks in which you received no salary or very little, then you should not include those weeks in your calculations, since they will unfairly skew the average downward and not represent the true average weekly wage.
The law provides that under those circumstances, the wages of another employee in a similar job or situation to yours may be used to calculate your average weekly wage. If this is done by an insurance company, you must be very careful that they choose an employee whose position is truly similar to yours and is not chosen so as to provide the lowest possible average weekly wage.
Generally, yes. The law requires that after a claim has been filed and from time to time thereafter, the insurer may require that the employee report to an examining physician of the insurer's choice who will provide the insurer with a report of your condition. Although you usually should report to these examinations, they must be at reasonable times, within a reasonable distance from your residence, and spaced at appropriate time intervals. A company cannot make you travel too far or make you report to an excessive number of examinations for purposes of harassment or inconvenience.
It is quite natural to be nervous about these examinations. Unfortunately, many of the doctors who perform them do not go out of their way to make you feel more comfortable. Increasingly, these examinations are conducted by companies who employ doctors as independent contractors. You may therefore not be seen by a doctor who is actually practicing medicine, but who is retired and is using these examinations to supplement his retirement income. These companies market themselves to insurers. Although many of these examiners try very hard to provide an objective opinion, there are some who may be inclined to be less than fair. All that you can do to minimize the prejudice that can result from these examinations is to be sure that the doctor is made aware of all of the symptoms that you are experiencing and that you keep track of the amount of time that is spent by the doctor with you. You should also be sure to distinguish the amount of time that he spends taking your history from the amount of time that he actually spends examining you. Often the actual examination is conducted in no more than a couple of minutes. It would be wise to contact your lawyer to advise him or her that you have been ordered to go to an examination. He or she may be able to give you some additional information about the doctor who will be examining you and tell you types of things to look out for at the examination. It is also a good idea to bring someone with you to corroborate your observations. That person may be prohibited from actually entering the examination room with you, but could certainly be helpful in timing the examination.
You may be able to make a claim if you can show that you sustained injury as a result of a dangerous condition and grocery store personnel knew, or should have known, about the danger. People have received compensation for harm suffered as a result of slipping on produce or spilled product, as well as dangerous parking lot conditions. Again, a crucial element of any slip, trip and fall claim is proof that store personnel were aware of a dangerous condition, or reasonably should have known about it and failed to take reasonable action to assure safety.
You may be able to make a claim if you can show that you sustained injury as a result of a dangerous condition and the apartment owner or manager knew, or should have known, about the danger. People have received compensation for harm suffered as a result of rickety stairs, missing handrails, tattered carpeting and icy steps when landlords have known about a danger and failed to eliminate unsafe conditions.
Certain personal injury claims involving slip, trip and fall incidents require notice to the property owner. Two important examples are 1.) incidents involving ice or snow and 2.) incidents in which the property owner, (or agency charged with maintenance), is a town, city, state or the federal government. The deadline for giving notice may be very short, as few as 30 days. If you are involved in a slip, trip and fall, you should consult a lawyer immediately.
Special damages include medical expenses and lost wages. General damages include pain-and-suffering and other elements which are more difficult to quantify and calculate.
How much a case is worth depends on many circumstances. Each case is unique. Certainly the type and amount of damages matter as does the liability of the property owner or person charged with maintenance. Sometimes it’s difficult to prove negligence. Sometimes, the defendant will try to blame the injured person and argue that there is contributory negligence. You are best served by taking the advice of an experienced personal injury lawyer who knows the law, is able to properly analyze the facts and has confidence negotiating with the insurance company. An insurance company must appreciate that your lawyer is competent, capable and ready to present your case at trial, if necessary.
Ultimately, a judge or a jury calculates damages in a slip, trip and fall case. In settlement negotiations, your lawyer and the insurance company adjuster argue about how damages may be awarded by the jury, if your case were to go to trial. Considerations in calculating damages are the nature of injuries suffered in the incident, the medical treatment provided to the injured person, the cost of medical care, time away from work, lost wages, medical restrictions on work or other activity, scarring and disfigurement, permanent loss of function or disability. Damages are compensation paid for the effect of injuries upon the injured person’s life activities.
Slip, trip and fall incidents result from a variety of dangerous conditions. A slippery surface may be caused by ice, snow, water, unsecured carpet or rug, or spilled product, (such as food, lubricant, health or beauty aid). Any kind of dangerous condition in which a person’s foot could catch or drop can cause a trip; examples include a hole or pothole, an unlevel surface or hidden obstacle. Any condition which may cause an unknowing person to slip or trip and fall is a cause of an incident.
First, take care of yourself and seek medical attention. Make note of the surroundings and try to identify the specific condition which caused the incident. Get contact information for any witness. Report the incident to the property owner or facility manager, including creating a written incident report, if possible. You should always consult a lawyer if you’re injured as a result of a slip, trip and fall on a dangerous condition.
In most cases you cannot make a claim under your homeowner policy for injuries you may have sustained. Most homeowner insurance policies have an exclusion for people who actually live on the property.
Usually the answer is no. You cannot sue your employer if you are entitled to collect workers' compensation benefits. However, if there is another entity or party who owned or was responsible for maintaining the area where you fell, you may have a claim against that party.
Generally, insurance companies will claim you were not paying attention, you were carrying things, your clothing or footwear contributed to your fall or you assumed the risk of entering into an unsafe situation.
In Massachusetts you must prove that the Defendant was more then 50% at fault before you can collect damages.
In Massachusetts there is a three year statute of limitations to file a lawsuit for a slip and fall accident. However, under certain circumstances you may be required to provide a landowner with prompt notice of a slip and fall accident to remain eligible to file a lawsuit. Therefore, if you are injured in this type of accident, you should contact an attorney at your earliest convenience so that your rights may be protected. Stricter notice requirements exist if the fall occurred on public property.
Nursing home residents have certain rights and protections under both state and federal law. The nursing home must list and give all new residents a copy of these rights.
These resident rights include, but aren't limited to:
At PSRB we review a wide range of injuries that can be suffered from nursing home neglect. Some injuries can be life threatening, painful and debilitating. Certain conditions may require immediate legal intervention to prevent further harm. PSRB is always here to advise you as to your rights and the person rights of the person receiving care. Please do not hesitate to contact us for a free consultation at 800-785-5399.
It’s critical that you immediately question any changes to your loved one that you notice. Report changes and concerns to the staff and management of the facility. All facilities are required to have a process for responding to concerns. Each city or town also has a long term care ombudsman that can provide assistance in the case of nursing home neglect. In Massachusetts, this link will provide you with some contact resources:
https://www.mass.gov/files/documents/2018/08/02/LTC%20Ombudsman%20contact%202018.pdf
You may also file a complaint with the Department of Public Health.
Sudden mental or cognitive differences in the person will be an indication of abuse. Changes in alertness and depression are often common as are increases in combativeness and emotional outbursts.
Obvious physical changes such as bruises or bed sores, abrasions, cuts, burns or broken bones are examples of possible abuse. More subtle signs such as poor hygiene, unusual weight loss, bed wetting and medical needs that aren’t being met are also potential warning signs.
Financial abuse can also occur and is the fastest growing kind of abuse of the elderly. Sudden changes in financial situations may be a sign.
While each state defines neglect differently, nursing home neglect and institutional elder abuse refer to physical and or emotional mistreatment of a person who resides in a nursing home, assisted living facility, group home or anywhere where there is a contractual obligation for that institution to provide care.
Neglect can take many forms including physical abuse, mental or emotional abuse, sexual abuse, financial abuse and abandonment. More than one kind of abuse is often common at the same time or at different times during a person’s stay in an institution.
All residential institutions are expected to provide care that ensures the safety and heath of their residents including proper medical treatment, adequate shelter, food and nourishment, hygiene and supervision. If the institution fails to provide these services, it can be considered neglect. If the failure is intentional, it can constitute abuse.
