Boston Personal Injury Lawyers Blog

Bicycle traffic in Boston has increased tremendously in the past decade. The rise in bicycle commuting and bike-share programs are largely responsible for the surge in ridership. In a new effort to make city biking safer, the bike-share program Hubway recently added the city's first bike helmet vending machine.

Two weeks ago, Mayor Thomas Menino announced users of Boston's Hubway program were now able to rent helmets with their bicycles. The first "HelmetHub" machine was installed at the Hubway location in the Fenway area. That area was recognized as one of the most dangerous for cyclists in the city commissioned 2013 Boston Cyclist Safety Report. Mayor Menino set a goal to cut the cyclist crash injury rate in Boston by 50 percent by 2020 through measures based the city's findings. The safety report compiled years of data on bike collisions in the city, including statistics on the locations and times of crashes, helmet use, and bicyclist and motorist behavior.

The MIT designed HelmetHub is the first helmet vending machine of its kind in the United States. If the statistics indicate the program has been successful, then it is slated to be adopted throughout the city. The HelmetHub vending machines will be installed first at the city's top Hubway station if the pilot program is successful. The top Hubway stations are at: Beacon and Arlington streets, Boylston and Arlington Streets, Charles Circle, North Station and South Station.

The Hubway locations are strategically placed throughout Boston to ensure profitability and sustainability of the program. It is widely known that helmets greatly decrease the risk of suffering catastrophic head injuries. HelmetHub is meant to address that issue. The lack of helmet availability has consistently been criticized, especially in light of the popularity of the bike share programs with tourists in the city.

The consequences of a bike accident may be devastating when the rider does not wear a helmet. As the Boston Cyclists Safety Report recognized, most bicycle accidents occur between vehicles and bicycles. To date, helmet usage has been relatively low, and some of these accidents have been catastrophic. Sudden impacts to the head may result in traumatic brain injury (TBI) and other debilitating injuries. The brain injuries may be moderate or severe; and the impact on a victim's body may be chronic and significant. The symptoms of significant head trauma, primarily caused by a swelling of the brain, include loss of memory, dizziness, mood changes and blackouts.

If you or a loved on sustain a serious bicycle accident, you should consult a personal injury attorney as soon as possible.

Massachusetts is home to some of the most prestigious, most technologically advanced, and highest quality hospitals in the country. Many of the nation's best trained doctors staff these hospitals and practice medicine in Massachusetts. While the quality of medical care in Massachusetts remains at a very high level, there has been a persistent rise in the number of malpractice suits filed in our courts. Most of these claims are filed against primary care physicians and the overwhelmingly majority of them are rooted in allegations of misdiagnosis.

The Boston Globe recently reported on the most common medical malpractice complaints. The article discusses a new study where the most common bases for malpractice suits were found to include accusations of diagnostic mistakes, alleged errors where a physician failed to make a proper referral to a specialist, rushed physical exams, and patient neglect. The Brigham and Women's Hospital study found that 72 percent of malpractice suits focused on these types of alleged medical misconduct.

A potential malpractice claim may arise from the treatment rendered to a patient by a primary care physician where the physician has no specific specialty, but has the duty to know when to make a referral to a specialist. The study leader offered that diagnostic mistakes are the worst problem. The doctors who conducted the study examined the records of 550 malpractice lawsuits involving primary care physicians dating back to 2005. Of those lawsuits, 190 alleged the misdiagnosis of cancer, and 108 of them claimed the doctor failed to make appropriate diagnoses of heart disease, blood vessel diseases, infections, and strokes.

The rising number of complaints of misdiagnosis by doctors of patients' physical ailments is mirrored by the rise in patients' complaints against doctors over-diagnosing mental illness and blithely prescribing powerful behavior altering prescription drugs, apparently in an effort to sedate and control behavior. A bill presently before the state legislature focuses on the over prescription of psychotic drugs in nursing homes. And while the problem is more acute for the elderly, it is also clearly more widespread than that; affecting and threatening all Massachusetts residents.

The bill before the legislature is focused on the potential for abuse in assisted living facilities designed for elderly patients. The bill aims to require that prescribing care givers must receive informed consent from patients or their responsible family members before they may administer powerful drugs that present particularly high risks of injury or death to older patients. Requiring informed consent is essential to making our nursing homes safer for our elderly loved ones, just as properly diagnosing medical issues and making appropriate referrals must be prioritized and made achievable goals for Massachusetts doctors and hospitals.

Personal Injury Blog - Mental Health Care in Nursing Homes

On October 22, 2013, the Joint Committee on Mental Health and Substance Abuse will hear testimony regarding bill H1804 pending before the Massachusetts House of Representatives. If enacted, the bill will mandate new regulations for the informed consent required from distressed patients regarding psychoactive drugs. The bill hopes to standardize protocols across all healthcare settings and ensure patient safety, especially in the wake of tragic events that occurred across Massachusetts when informed consent was obtained under very questionable circumstances and psychoactive drugs were subsequently prescribed or administered.

As discussed in a previous post, sponsors of H1804 describe it as an act relative to the overuse of psychoactive drugs on the elderly population. The Bill is particularly relevant to elderly persons living in nursing homes, as the effects of psychoactive drugs on the aged are often much more dangerous than the effects on a younger person. While the psychoactive drugs such as Zypexa, Haldol, and Risperdal are usually effective in treating mental illnesses such as schizophrenia and psychosis, recently the drugs have been used to put "chemical restraints" on dementia. The drugs are being used to treat patients suffering from Alzheimer's, those with sleep disorders, to manage behavior and to stabilize mood. The drugs administered to treat elderly patients with such conditions may have dire side effects. This Bill will address careless prescription and administration of psychoactive drugs and require that informed consent is received before such drugs may be administered.

The informed consent protocols of H1804 include requiring in writing: reasons the psychoactive drug is recommended; a list of all possible side effect; alternatives to the medication, including behavior interventions; specified time period and schedule for drug administration and by whom side effects shall be monitored; means to ensure informed consent is given regularly, by means of a three month limitation of informed consent authorizations; and the right to refuse medication. The bill seeks to protect all patients in any Massachusetts health care facility.

Elderly patients experience the side effects of these drugs most severely, and have a greater incidence of falls and related injuries, which often leads to immobility and death. As these drugs are normally used to treat severe mental illness, this Bill seeks to monitor their administration. There is a history of medical examiners and nurses improperly prescribing and monitoring patients. One example occurred when a friend of the proponent of this bill died as a result of improper monitoring and a lack of informed consent.

If you or a loved one is currently living in a nursing home, it is imperative to be aware of these risks. If injuries have occurred, a skilled personal injury attorney may offer counsel and open the door for recovery of damages. Please contact the nursing home lawyers at Parker Scheer LLP at 886-414-0400 today, and click here to read more about our experience in nursing home cases.

The new Massachusetts rules governing electronic discovery will take effect January 1, 2014. The impetus behind the change is the now overwhelming reliance upon electronic storage systems, rather than paper documents. The rules presently governing discovery were drafted when information was contained primarily in paper documents. Recent studies show that over 93% of corporate information is now being stored in some sort of digital or electronic format, and a comparable proportion is indicated by the number of documents stored on personal computers. The new e-discovery rules will modernize the Massachusetts discovery methods and will impact every court in the Commonwealth.

An electronic storage system, employed as a storage medium for information previously retained on paper documents, recommends itself for at least three major reasons:1) the vast increase in the amount of information that may be stored electronically within the same physical space as a paper system; 2) the multiple redundancies that occurs in an electronic system; the same information in several different places, and 3) the dynamic nature of the electronic information whereby relevant information from throughout the entire storage system may be instantly assembled far faster than is possible with a paper system. The amount of information that may be stored on a computers is a product of its storage capacity; one gigabyte of storage space can hold the equivalent of over 500,000 paper documents. The physical dimensions of a gigabyte of computer storage space may resemble those of a phone book. Electronic information is rarely truly deleted even when information is moved to the "trash", and the normal operation of computers creates redundancies and saves information in ways impossible to replicate on paper. Moreover, electronic information is dynamic in that information located anywhere throughout a hard drive. All e-mails, websites visited, drafts of documents, etc. may be accessed and compiled simultaneously in response to a query, which would be impossible with a paper system.

The new e-Discovery rules are clearly modeled after the Federal Rules of Civil Procedure. The Reporter's Notes articulate the reasoning that went into making the particular rule, and discuss the impact the rules will have on the litigation process. The rules will apply to all trial courts in Massachusetts. As resources are limited in many smaller courts, the new rules allow parties to hold conferences and agree to alternative discovery plans without submitting it to the court for approval.

Additionally, the new rules define "inaccessible information" as, "electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost." With that definition in mind, practitioners need to be mindful of the ways social media networks are urge participants to share publicly. Exemplifying this encouragement, the social network Facebook has recently decided to relax sharing restrictions by teens, allowing them to publish posts publicly. While social networks push users to post online, the new Massachusetts E-Discovery rules taking effect this coming January will make it more difficult to keep such postings outside of the permissible scope of discovery by opposing counsel.

Debilitating injuries and death are always tragic when they occur at the workplace. The Massachusetts Workers' Compensation Act provides survivorship benefits to the statutory dependents of deceased employees. These benefits may continue for many years. Beyond supplying a weekly compensation check, the Massachusetts act provides partial burial payments and may cover legal fees and probate filings. Moreover, the Massachusetts Workers Compensation Act may provide benefits for family members who are caring for injured loved ones.

The most common causes of death at the workplace include falls (35%), being struck by an object (10%), electrocutions (9%), and injuries resulting from being caught in/in-between objects at the jobsite (2%).

In order to obtain workers' compensation survivor benefits, a spouse or dependent must file a claim and supply medical information that supports the connection between his or her spouse's work-related injury and his or her death. A claim for death benefits must be filed within one year of the employee's death, two years in the case of occupational disease (e.g., asbestosis). As a widow/widower receiving Special Fund payments, you would receive survivor benefits for life as long as you did not remarry. If you do remarry, you will receive a one-time, lump-sum payment, representing two years of survivor benefits. If you subsequently divorce your new spouse, or if he or she dies, your benefits will not be reinstated.

The four types of workplace accidents listed above account for an even larger percentage of debilitating injuries that occur that do not result in death. These types of accidents often require family members to render care for loved ones at their residence.

With respect to care giving, each industrial accident does not only affect the employee, but also his family. The dramatic reduction in weekly income creates burdens and hardships for all of the injured worker's family and dependents. In addition to the physiological and financial effects the family suffers, often family members render care for an injured worker. The Massachusetts Workers' Compensation Act provides that insurers must pay for all "reasonable and necessary" medical care. As costs of medical treatment become more and more expensive, the costs of in-home care have also risen. Massachusetts courts have recognized that a family member caring for an injured worker is entitled to payments for his or her services. Insurance companies often fight to avoid paying claims for compensation in these same courts.

When faced with circumstances where family members care for an injured worker, it is imperative to seek legal counsel. While insurance companies may suggest that nursing facilities may be the best option, they are not the only option. Injured workers cannot be forced to live apart from their families because an insurer refuses to pay for the medical expenses incurred to continue living at home. A skilled workers' compensation attorney can help analyze the legal issues and prevent an injured worker from having to leave his house due to an insurance company's refusal to pay for in-home care.

It is the job of the Department of Labor's Occupational Safety and Health Administration (OSHA) to make sure that America's workers are working in safe conditions. OSHA has many responsibilities, including creating new workplace regulations, performing regular inspections, and giving safety training. It also can fine employers and businesses for any violations of OSHA standards.

Recently, OSHA fined a contractor in Massachusetts over $350,000 for violating these standards. The standards are in place to prevent accidents and injuries in the workplace.

Back in March, investigation into the contractor's worksites began. A worker had been injured, and suffered from broken ribs and leg injuries when a wood roof truss system collapsed. When OSHA found out about the conditions, the investigation began at that site and another site in Reading.

In Plymouth, OSHA found that worksite was not safe because the trusses had not been adequately braced for installation. If an employee was working at that site, he or she was at risk from the trusses. On top of that, the workers were also at risk of falling up to twelve feet while installing the trusses. Furthermore, there were also uncovered anchor bolts and misused ladders, in addition to uninspected and untagged rigging. Because of all of these hazards and violations, OSHA issued $196,200 in fines.

At the other site in Reading, OSHA found even more violations. Workers at the site were not equipped with the proper fall protection gear while framing the exterior walls. In addition, they were exposed to more hazards while doing the final attachments for the deck and constructing the edges. Because of these failures, the contractor was fined $140,000 by OSHA.

OSHA's safety regulations exist to ensure that workers are protected from preventable injuries in the workplace. The New England regional administrator for OSHA said that the penalties given are meant to reflect each offense's severity and to keep the same hazards from recurring. In this case, the contractor knew about the offenses being committed and did not take action to create a safer worker environment. This created a need for OSHA to hand out more financial penalties to the contractor.

Construction workers face some of the greatest hazards and most dangerous workin conditions. Among construction workers, falls are the top cause of death. Many of these deaths could be prevented if employers followed OSHA standards, including proper equipment and infrastructure. Because of this, employers who choose not to comply with OSHA standards are met with fines and penalties.

The contractor from this case is now in OSHA's Severe Violator Enforcement Program, which will require extra inspections to ensure compliance from now on.

It's getting to be that time of year again. With winter, come the piles of snow, unplowed parking lots, and ice on the sidewalks. And, with all of that, comes an inherent danger for pedestrians and drivers.

Back in 2010, the Massachusetts Supreme Judicial Court ruled that every Massachusetts property owner is legally responsible for removing all snow and ice from their business or residence (Papadopoulous v. Target Corp). Prior to this, a common law known as the "Massachusetts Rule" had allowed property owners to leave snow and ice on their properties without liability. This ruling dismissed the common law, and the Court found that snow and ice create dangerous conditions and therefore must be treated as such by property owners.

Slip and fall injuries often occur due to snow and ice, and it is important to understand your rights and premises liability if you have had an accident.

Slip and fall injuries come under the category of common law negligence. In Massachusetts, property owners and management companies must take reasonable care to make sure that people who enter their properties are safe. This applies to cleaning up a spill, getting ice off of the sidewalks and marking anything that could present a danger. Both commercial and residential property owners are required to take care of their properties in order to prevent accidents. Snow and ice must be removed quickly and well. This includes sidewalks in major cities, such as Boston, under local ordinances.

Although most slip and fall cases involve commercial property, cases can also be filed against government entities if a property has not been maintained or repaired. Landlords can also be found liable for similar failures, while owners of private property can be held liable if they did not fix something within a reasonable time frame.

Juries in slip and fall cases look at a number of steps in order to decide whether the property was reasonable in trying to prevent the accident from occurring. Both sides will have the opportunity to present evidence on whether or not the property owner knew or should have known that there was a potentially dangerous situation. The victim can present video, pictures, or have witnesses attest to the situation in order to prove the property owner knew of the situation or failed to take reasonable action. The longer the property owner was aware of the problem and did not take action, the more likely they are to be found liable.

Slip and fall cases, especially those involving ice and snow, can result in serious injury for the victim. Common injuries include broken bones, injuries to the head and neck, and lacerations. Victims in these cases can be entitled to compensation for their medical expenses, lost wages, pain and suffering, and other costs relating to the injury.

A recent study conducted by Gordon Schiff, M.D. with his colleagues from the Harvard Medical School and Brigham and Women's Hospital, found that most medical malpractice primary claims in Massachusetts center around alleged misdiagnoses.

In recent years, the focus in the medical field has been on make improvements for patient safety. Efforts to decrease the number of medical malpractice efforts have focused more on outpatient care.

The study focused on the types, causes and eventual outcomes of the primary care medical malpractice claims that had been made. Using claims that had already been closed from two of the top health insurance providers in Massachusetts between 2005 and 2009, the researches were able to use a total of 7,224 cases for the study.

Of the 7,224 cases that were studied, 551 came from primary care practices. Of these, a whopping 397, or 72.1%, had allegations about diagnosis. Most frequently this pertained to either a failure to diagnosis or a delay in the diagnosis of cancer. Another 12.3% of cases had to do with issues relating to medication, while 7.4% concerned other forms of medical treatments, 2.7% pertained to communication, 2% had to do with the rights of the patients, and 1.5% had to do with the safety of the patients. Overall, the researches discovered that the primary care medical malpractice cases were in general more likely to end up with either a verdict or settlement that favored the patients when compared with other medical malpractice claims.

Back in 1999, approximately 98,000 Americans were dying each year due to preventable errors made in hospitals. At the time, the news made plenty of headlines and people called for new policies and action to decrease that number.

However, just the opposite has happened. A new study released by the Journal of Patient Safety found that over four times that number of patients, or up to 440,000, now die from preventable medical hospitals.

Part of the reason for the finding lies in the new research methods used to find errors and cause of death. New innovations from Dr. David Classen and the Institute for Healthcare Improvement among others allow us to find out more about these errors.

With this new information, medical errors more up to the third leading cause of death in the United States, leaping over car accidents and only behind cancer and heart disease. Leaders in the field of patient safety believe that this number is closer to reality than the smaller number from 1999, and should be treated as the best estimate.

When a patient dies due to a medical error, it means that they are not dying from the ailment that caused them to seek treatment initially. Rather, the pateints are dying from causes that proper treatment while in the hospital could have prevented. These errors vary greatly, and can be anything from improper dosage of medication to sponges left inside of patients during surgery to infections cause by the use of contaminated equipment. Over one thousand of Americans are dying each day due to these simple mistakes.

Compounding the problem, the costs of these mistakes are paid for by the taxpayers. When a hospital makes a mistake, the extra cost associated with it is shifted onto the taxpayers or businesses that pay for their healthcare. The Journal of the American Medical Association conducted a study on these costs and found that for every employee who had an infection following surgery the employer paid $39,000 extra.

Of course, leaders in the hospital injury say that it is very hard to reduce the number of medical errors due to the complexity of their operations. The best way to prevent errors is to have every employee of the hospital strictly abide by the rules, and to have all systems function correctly.

And, the leaders are right. However, that does not excuse the high number of errors that occur due to negligence. Many studies have been conducted, and findings have shown there are many strategies that could go a long way toward reducing this number. It has also been found that when hospitals make safety a priority and use these strategies, medical errors decrease. The opposite has found to be true as well. There is no excuse for this high number of medical errors to still be occurring.

If you or a loved one has been a victim of a medical error or other medical malpractice it is important to speak with an experienced personal injury attorney. Contact Parker Scheer LLP at 886-414-0400 today.

The Massachusetts Workers' Compensation Act offers guidance as to how to calculate weekly workers' compensation payments. Generally, the amount paid each week is based on the injured employee's average weekly wage. An injured worker is entitled to receive 60% of that average wage when the worker is totally disabled. The calculation of this percentage involves factoring in a number of factors which are essential to determining the proper weekly benefit package.

The Average Weekly Wage (AWW) may be computed in a number of different ways. The most common example, and most straightforward, would involve a worker who has been employed by an employer for more than a year prior to his work related accident. In this case, the AWW would be calculated by dividing the employee's gross earnings (before taxes) for the one year prior to the accident by 52 weeks. Alternatively, if the worker had been employed for less than one year prior to his accident, the gross wages would be divided by the number of weeks he had actually worked prior to the accident, in order to calculate his weekly benefit. If the accident occurred shortly after a worker had been hired, the AWW may be computed by use of a comparable employee's earnings. The employee salary used for this comparison purpose should be truly comparable with comparable duties, as opposed to, for instance, merely using the lowest salary of any employee with the same job title.

The Massachusetts Workers' Compensation Act provides wage replacement by design. Where an employee was working multiple jobs with multiple employers at the time of a work related injury, the Act provides the worker with wage replacement for all of the jobs at which he was employed, and not just for the specific job at which the employee was injured. The Massachusetts statute allows a worker to augment the AWW by including in the calculation the wages earned at a second or third job. The gross wages for each job are included in determining the AWW. Additionally, when calculating the percentage of gross pay to which an injured employee is entitled, concurrent jobs are included to determine the proper weekly compensation check. There is no limitation except that each job must be covered under the Massachusetts Workers' Compensation Act.

It is important to remember that an employee may recover benefits from multiple jobs, not just the specific job at which he was injured. An injured employee should not accept an oversimplified pro forma explanation of the AWW computation process utilized in his case. It is important to seek counsel from an experienced workers' compensation attorney familiar with the intricacies of this process to ensure that an injured worker receives what he deserves. If you believe you are entitled to receive payments under the Massachusetts Workers' Compensation Act, contact one of our experienced attorneys today at 886-414-0400.

Providing the Department of Industrial Accidents approves of the lump settlement, a workers' compensation case can be settled. However, insurance companies do not have to settle, and the injured worker cannot be required to accept a settlement offer. Rather, the settlement process is completely voluntary. In addition, Massachusetts's judges do not have authority to order lump sum payments and end cases. They are only able to review proposed settlements and determine if the settlement is what's best for the employee.

So, how does a workers' compensation case get settled?

Let's start at the beginning. A lump sum settlement is a contract. It forms when an insurer offers to settle an employee's claim, and the employee then accepts the offer. Either a Judge or conciliator from the Department of Industrial Accident, who determines whether the settlement best serves the employee's interest, must review all lump sum settlements. If it is found to be in the employee's best interest, it will be approved and the insurance company has to pay the employee within two weeks. If it is not approved, the parties may re-negotiate and present a different proposal.

Each case has its own value, and there is no perfect formula to find an appropriate settlement. Insurers like to settle their cases because they worry it will cost them more money in the long run if a case is not settled. Employees can have a range of reasons to choose to settle, include the lower amount they could receive if they go down the long road of litigation. A negotiated settlement gives the employee a low-risk result while maximizing the amount rewarded.

The size of a lump sum settlement depends of a variety of things. Usually, the two largest factors are the amount the injured worker would receive on a weekly basis and the extent of the worker's disability as it relates to the injury.

Before settling, it is also important to consider what the worker will do next as a settlement forgoes the right to collect any more benefits from the injury. The settlement is meant to pay for the future weekly benefits of the worker until he or she can retrain or find different work. Therefore, an injured worker must be careful as to how supporting oneself following receiving the settlement.

In Massachusetts there are two forms of settlements. First, a case can be settled with liability. This means that the insurer must pay for the employee's medical care for an industrial injury for the rest of his or her life if it is reasonable, necessary, and relates to the accident. In these cases the insurer agrees that the injury was work related, or the Department has determined it is work related. Second, the case revolves around an injury where the insurer does not believe the injury falls under the MWCA. These cases are settled without liability, and all aspects of the case are closed following the settlement.

After a settlement is approved, injured workers can resume work at any time. However, the employer is not required to rehire the worker. Settlements under the MWCA are complex, and require many negotiations. If you have been injured in the workplace and would like to settle your case, contact experienced workers' compensation Attorney Joe Burke at 886-414-0400.

According to the U.S. Department of Transportation 73% of bicycling fatalities take place in urban areas; 68% of those occurring at non-intersection locations. The majority of accidents take place between 5:00 PM and 9:00 PM. Traffic signs directing drivers to "share the road" and giving comparable warnings and instructions have been disseminated throughout major cities, yet bicycling remains very dangerous in urban areas.

According to governmental statistics, there has been a tremendous increase in the number of cyclists in the Greater Boston Area. As the number of cyclists has increased, the city has responded by creating more bike lanes and paths for commuters and recreational cyclists alike. Cycling advocacy has proliferated throughout the city, further publicizing the noticeable increase in cyclists on the road and warning motorists. Despite these efforts, however, more bike accidents happen every day. Most accidents involve vehicles and bicycles during high traffic hours when a driver strikes a cyclist traveling in a bike lane. The most recent Boston Cyclist Safety Report, as put forth by the mayor's office, has prompted more serious discussions regarding the need for increased cyclist safety on the road.

In the report, Mayor Menino issued a call to action, hoping to cut the number of bicycling accidents in half by 2020 and recognizing that "the bicycle has become a critical part of our transportation system." Boston Police statistics show that between 2010 and 2012 a total of 1,446 incidents had been recorded in Boston alone. They further indicate that the number of daily bike trips has increased from roughly 47,000 trips per day to 56,000 trips in that same two year period. The number of trips has increased consistently over the past decade and shows no sign of faltering. With the surging popularity of bicycle ridership and programs like Hubway adding kiosks throughout the city, the experts expect rides per day to rise for years to come.

As ridership increases and, similarly, so have the number of bike-related accidents, the mayor's office has asserted that simply putting more bike lanes throughout the city is inadequate. City transportation officials hope to introduce bike lanes with separation barriers between bike lanes and vehicle lanes on busy roads. These barriers would only protect certain cyclists in limited locations. Substantive improvements to biker safety can only be achieved with greater driver awareness. Cyclists may only be truly safe from injury when drivers recognize that they must look both ways, not only for cars and motor cycles, but for bicyclists as well. The mayor's commissioned report states that cyclists were at fault in only 12% of the total bike crashes in the city.

Safety concerns weigh on every cyclist's mind, but the rise in accidents has not dissuaded people from biking to work. More needs to be done to make drivers more aware and cyclists safer on the road. Until then, accidents will continue to occur. If you or a loved one has been injured riding a bicycle please contact our office at 866-414-0400 to speak with an experienced personal injury attorney.

The Massachusetts Worker's Compensation Act is the primary source of payments for medical expenses incurred by injured workers, so long as the treatment is reasonable, necessary and related to the claimed injury. In response to the dramatic rise in the cost of medical care, the state legislature has amended the Massachusetts Worker's Compensation Act to create a medical management provision with which all injured workers and their medical providers must comply. The amended Act requires that a review process be completed before treatment is provided and medical bills are paid. When an injured worker seeks benefits and non-emergency medical care, the plan for treatment must initially undergo a "Utilization Review" by an agent designated by the worker's compensation insurance carrier before benefits are paid.

The agent conducting the Utilization Review is charged with determining solely whether a proposed treatment plan is reasonable and necessary to provide proper medical care and treatment for the stated injury or condition. The review process does not address issues of the cause or circumstances of a workplace injury, but is strictly focused on whether a treatment plan is medically appropriate within the standards set out in the Massachusetts Workers' Compensation Act. In most instances, Utilization Review will compare the proposed treatment plan with common past medical practice when dealing with similar injuries or conditions. Utilization Review is designed to consider proposed treatment plan components including diagnostic testing procedures (e.g. CT Scans or MRIs), physical therapy, chiropractic treatments and surgeries. However, there is no review requirement for an office visit or consultation; only the treatment plan is subject to the Utilization review.

Generally, a medical provider submits a proposed treatment plan to a Utilization Review agent, who reviews the plan to determine if it is medically reasonable and necessary for the treatment of this workplace injury. If the reviewer finds the plan is appropriate, that does not yet guarantee payment of benefits to the injured worker. The plan must then be submitted to an insurance adjuster, who determines whether the injury or condition itself was sustained under circumstances arising out of and in the course of his employment. For treatment to be approved the injury must be sufficiently work related as defined under the Worker's Compensation Act. If the insurance adjuster finds the injury is work related, and covered under the Act, then the worker is free to proceed with treatment.

If a treatment plan is not approved by a Utilization Review agent, this decision may then be appealed by the injured worker. The injured worker may appeal the adverse determination by either calling the agent or submitting a written request for appeal. The appeal process requires the Utilization Review agent to conduct a peer-to-peer review between the provider who proposed the treatment plan and a person who practices in the same field of medicine. If the peer assessment results in another denial, then the injured worker may file a claim with the Department of Industrial Accidents for further review. If the peer reviewer agrees that the proposed treatment plan is reasonable and necessary, the claim moves again to an adjuster who conducts the inquiry into the relationship between the employee's work and the claimed injury.

If the insurance adjuster deems the accident and resulting injury or condition did not arise out of and in the course of his employment, and is not a compensable claim under the Act, then the injured employee must file a claim at the Department of Industrial accidents in order to obtain the recommended care.

This process is complicated, and an experienced workers' compensation attorney familiar with Utilization Review and the authority of the reviewing agents and insurance adjusters should be utilized throughout in order to explain the process, provide counsel and streamline this entire procedure.

Chobani has decided to issue a voluntary product recall of yogurt following reports of at least 89 people falling ill.

A spokesman for the Food and Drug Administration (FDA) said that those who have fallen ill have experienced symptoms similar to food poisoning that have included nausea and cramps. However, the cases have not been confirmed, and no link between the illnesses and eating the yogurt has been proven. Chobani is working with the FDA to remove the defective product from grocery shelves as quickly as possible in order to avoid any further potential food poisoning.

The product recall affects those cups that have the code 16-012 and expire between September 11 and October 7. At this time, the yogurt in question is not considered a public health threat, but the mold can cause health problems, especially for anyone who already has a compromised immune system.

As of September 9th, the source at the Twin Falls, Idaho plant had been found, and the company has already taken steps to prevent a similar problem in the future. However, Chobani has not publicly stated neither the cause nor what the preventative measures taken have been. Late last week, a spokeswoman for the company said the 95% of the defective product had already been destroyed. The company also noted that the reason the mold became an issue was because of the lack of preservatives used in the yogurt. Mucor circinelloides, the mold that was found in the yogurt, is said to be common in the dairy environment. It is not dangerous to most people, and is also not classified as a foodborne pathogen.

Customers who purchased the yogurt noted that the cups looked like they were swollen and bloated. Different sizes of Chobani were affected, ranging from the 3.5 ounce cups all the way up to the 32-ounce tubs. A total of 91 varieties of the product were involved in the recall. Customers who ate the yogurt had various comments about the quality not being right, ranging from a fizzy texture to a taste that reminded one customer of wine.

Adding to the concern, days after the company issued the product recall it was still spotted on grocery store shelves. Retailers in Wisconsin were found to be selling the moldy yogurt despite the fact that a product recall had been issued.

If you purchased the defective yogurt, do not eat it and follow the measures of the recall, which can be found on the company's website. Any customers who have fallen ill after eating the yogurt are encouraged to see a medical professional and then call Chobani at 877-847-6181. A complete list of the containers can be found on foodsafety.gov. Refunds can also be obtained by contacting Chobani via the company website.

UPDATE: As of September 12, a total of 118 people have reported falling ill after eating the yogurt.

The Massachusetts Workers Compensation Act has been designed to work in a simple and summary manner that gives injured workers quick access to the Department of Industrial Accidents. To begin a worker's compensation case, the first step is to appear before an Administrative Judge. The judge will then issue a temporary order after a conference at the Department of Industrial Accidents. Usually the conference will center around the injured worker's claim for benefits after the insurance company has denied it, or a request from the insurance company to either pay lower weekly benefits of completely discontinue payment. The Judge's order will either instruct the insurance company to start paying, or allow payments to stop or decrease.

While this is important, if the insurer does not honor the Judge's order, then the appearance has no meaning. The insurer, who has a higher economic position than the injured worker, can be given the right to stop payments, and the employee must then request a hearing before the Department. The injured worker is not able to force the insurer to continue payments and has to complete the hearing process first. This alone can take up to a year. However, in the case that the employee does win, what happens if the insurer choses not to comply and still does not make payments?

In the past, the employee had one option: to pursue the issue in the Superior Court. That process was lengthy and difficult. Now, the legislature has recognized that the orders must have a compelling force so that they carry the proper weight for the insurer. Because of this, the legislature has given an extra incentive for insurers to comply by adding penalties that go into effect if the insurer fails to make the required payments. Under the MWCA, these penalties can range from $200 up to $10,000 in the form of payments to the injured worker when the insurer fails to make all of the payments within the designated time frame of the statute.

However, even with these penalties now in place, some insurers have continued to use their elevated position to take advantage of injured workers. Attorney Joe Burke has successfully argued one such case against the MBTA. The MBTA is one of the largest self-insured employers in the state of Massachusetts. When the MBTA refused to pay one of its workers, Attorney Burke was able to successfully pursue the penalties from the MWCA, resulting in a $10,000 payment to his client. The MBTA decided to appeal the decision, where Attorney Burke and the system in place once again prevailed.

If you or a loved one has been injured in the workplace and your insurer is refusing to pay contact experienced Worker's Compensation Attorney Joe Burke at 886-414-0400 today.