October 21, 2014

Nursing Homes Offering Dementia Care Subject to New Regulations

As of February 28, 2014, the Department of Public Health (DPH) implemented new amended regulations involving the requirements for the care of residents with dementia. The new regulations, which are summarized in DPH Circular Letter: DHCQ - 14-5-615, are applicable to any licensed facility or unit that uses any word, term, phrase, or suggests otherwise that it is capable of providing specialized care for residents with dementia.

The newly amended regulations, found in 105 CMR 150.022 through 150.029, require that any and all relevant staff members must be trained and act in accordance with DPH guidelines. Relevant staff members would include direct care workers, supervisors of such workers, and therapeutic activity directors. The trainings conducted must include a basic introduction to Alzheimer's and other related dementias, trainings on centered care, understanding various needs of the family and ways to work with families of these patients, and working with caregiver's needs.

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August 22, 2014

OSHA Penalizes Contractor for Serious Risk of Worker Electrocution at Massachusetts Construction Site

According to a recent press release, a local contractor faces fines from the Occupational Safety and Health Administration (OSHA) arising from OSHA's discovery of electrocution hazards that pose serious safety risks to workers at the company's Cambridge worksite. Employees had been working in close proximity to energized power lines, using a trench rod and a fiberglass pole with a metal end to lift overhead power lines in order to move excavating equipment under the lines and onto their worksites - an activity that poses a serious risk of electrocution to the workers, and that violates OSHA worker safety standards.

OSHA proposed over $70,000 in fines for the contractor's violations. In 2011, the contractor had been cited for similar violations at a Framingham worksite. Accordingly, the contractor had already been made aware of the safety hazards associated with working near and around energized power lines, justifying OSHA's categorization of the Cambridge site violation as a willful violation. A willful violation is one committed with intentional, knowing, or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

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August 19, 2014

New Massachusetts Law May Mean Better Patient Care, Fewer Medical Errors in Hospitals

Governor Deval Patrick recently signed into law a new measure that requires Massachusetts hospitals to limit the number of patients that registered nurses working in intensive care units (ICUs) will be required to oversee at once. Under the new law, nurses may only be assigned to one patient at a time. In certain circumstances, however, a nurse may be assigned to two patients if the patients are deemed stable enough, based on the assessment of the staff nurses (not managers or supervisors) on that unit.

The state's Health Policy Commission will regulate implementation of the new law (titled "An Act for Patient Limits in All Hospital Intensive Care Units"), which calls for hospitals to develop an acuity tool to be used by staff nurses in determining if their patient is sufficiently stable to allow for a second patient to be added to the nurse's assignment. The acuity tool must be certified by the Massachusetts Department of Public Health. The Commission will also provide guidance on the method of reporting to the public on staffing compliance, as well as the identification of three to five related patient safety quality indicators, which will also be measured and reported publicly.

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August 14, 2014

Blasting Company Cited For Seventeen Workplace Health and Safety Violations

An abrasive blasting contractor renovating a mill in Easthampton, MA faces over $45,000 in proposed fines after receiving citations for seventeen serious workplace health violations by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA). According to an OSHA press release, workers on the mill site were overexposed to lead and silica and faced other health hazards due to the failure of their employer, Maher Industries (doing business as A Fast Blast), to supply basic, legally required safeguards.

The citations were levied against Maher Industries following an April 2014 inspection by OSHA's Springfield Area Office, which was conducted in response to a complaint by a worker. The investigation led to the discovery that workers were being exposed to airborne concentrations of lead and silica in excess of permissible exposure levels. Compounding this exposure hazard was the lack of a shower facility or protective clothing and eye protection for workers. OSHA investigators also noted that the company failed to monitor lead exposure levels and allowed workers to consume beverages adjacent to abrasive blasting sites.

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August 7, 2014

OSHA Citations for Massachusetts Dollar Tree Stores for Multiple Safety Violations

Last month, the Occupational Safety and Health Administration (OSHA) proposed fines of $177,800 for a Massachusetts Dollar Tree Stores location after identifying several safety violations, according to an OSHA press release. On a national level, the company has received over 450 OSHA violation citations in the past 19 years.

The Dollar Tree Stores located in Roslindale received citations for three "willful violations" after an initial inspection in December 2013, when OSHA found a variety of safety hazards in the store's stockrooms. These hazards exposed workers to grave possibilities of being crushed by merchandise that had been inappropriately stocked on shelves and could collapse. Additionally, the store was cited for permitting emergency exits to be blocked by store inventory, shopping carriages, and garbage, risking workers' safety if an emergency exit was required. OSHA also cited the store for not having proper means to access the store's electrical control panels, which house the store's power in the event of an emergency.

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July 11, 2014

New Law Increases Burial Benefits Under Workers' Compensation Act

On June 26, 2014, by signing into law a Massachusetts bill that increased the state's minimum wage and provided unemployment insurance reforms, Governor Patrick also amended the Workers' Compensation Act to increase the benefits to be paid to the survivors of workers killed on the job.

Under the most recent version of the law, survivors of deceased workers were entitled to benefits up to $4,000 for expenses relating to the burial of the employee. The new law now increases that maximum benefit to "eight times the average weekly wage" in Massachusetts - or $9,450. The change is an important one for families of those who lose loved ones in workplace accidents, helping to ease the financial burden of providing a proper burial.

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July 8, 2014

Appeals Court Upholds Approval of Settlement in Third-Party Claim Arising from Work-Related Injuries

Last month, in an unpublished decision, the Massachusetts Appeals Court upheld a superior court judge's approval of a proposed settlement between an injured worker and an allegedly negligent third party, over the objection of the employer's workers' compensation insurer.

In Brady v. Caterino, the plaintiff was working as an equipment operator at a job site. The defendant, who was an employee of a different company, was also working at the job site, operating a skid steer loader owned by his employer. The defendant ran over the plaintiff's right leg with the machine, causing serious injuries. The plaintiff's employer's workers' compensation insurer, EastGuard Insurance Company, paid the plaintiff workers' compensation benefits for his injuries arising from the incident, including his medical bills and lost wages. About one-and-one-half years after the incident, the plaintiff was able to return to work and work a regular schedule.

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June 27, 2014

Investigation Following Worker's Death Results in Citations for 13 Serious OSHA Violations

Last December, a 46-year-old employee of Boston Bridge & Steel, Inc. was killed on the job when the 12,000-pound bridge arch beam that he was spray painting fell on him, crushing him to death. Last month, according to a news release, the Occupational Safety & Health Administration (OSHA) discovered thirteen serious OSHA violations at the steel fabrication company during its investigation into the incident.

The worker's death occurred after the employer had failed to ensure that the steel beam on which he was working was adequately braced or supported to prevent the beam from falling. In addition, during its investigation, OSHA found that the workers:

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June 10, 2014

Recent Report Explores Major Causes of Bicyclist Fatalities

Last month, The League of American Bicyclists released a report titled, "Bicyclist Safety Must Be A Priority," focusing on data collected between February 2011 and February 2013 relative to bicyclist deaths. By analyzing data from other sources and combining that data with information gathered from news reports and internet postings, the report provided some eye-opening results. The following are summaries of excerpts from the report:

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June 6, 2014

OSHA Cites Woburn 3-D Printing Firm for Willful and Serious Violations of Workplace Safety Standards

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) recently cited Powderpart Inc., a Woburn-based 3-D printing company, for one willful and nine serious violations of workplace safety standards resulting from an explosion and fire on November 5, 2013, that left one employee with third-degree burns.

Powderpart Inc. uses combustible metal powders such as titanium and aluminum alloys in its 3-D printing process, and an inspection of its facilities revealed Powderpart Inc. willfully violated the requirement that it have Class D fire extinguishers. OSHA found that Powderpart Inc. knew aluminum and titanium fires cannot be extinguished by water or a common fire extinguisher, that the company's manufacturing process creates a heightened risk of explosion and fire, and that Powderpart Inc. did not have the required Class D extinguisher at the time of the explosion and fire. OSHA penalized Powderpart Inc. $14,000 for this willful violation.

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May 27, 2014

SJC Revives Estate's Wrongful Death Lawsuit

In a recent medical malpractice and wrongful death case, the Massachusetts Supreme Judicial Court (SJC) examined the requirement of "presentment" under the Massachusetts Tort Claims Act (MTCA) - a statutory prerequisite to filing a lawsuit against a governmental entity - and how, under the facts of the case, that requirement reconciled with the requirement as to who is permitted to file an action under Massachusetts' wrongful death statute.

The MTCA makes a public employer liable for property loss, personal injury, or death caused by the negligence of a public employee who was acting within the scope of his or her employment. Under the MTCA, before filing a lawsuit, a person harmed by a public employee's negligence must first "present" his or her claim, in writing, to the executive officer of the public employer responsible, and must do so within two years after the date on which the negligence occurred. This "presentment" gives the public employer six months to investigate the claim, and either deny it or reach a settlement. If the employer does not respond at all, it is considered a denial. After the six-month period has passed, the claimant may file a lawsuit. However, if the claimant does not abide by this presentment procedure, he or she is barred from bringing an action.

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May 19, 2014

SJC Defines Scope of Public Use Statute in Premises Liability Case

A recent decision from the Massachusetts Supreme Judicial Court (SJC) clarifies the meaning of the word "public," insofar as it relates to tortious liability in public spaces. In Wilkins v. City of Haverhill, a pedestrian who was attending a parent-teacher conference at her child's public school in February 2011 slipped and fell on ice that had accumulated on the sidewalk outside of the school, and sued the City of Haverhill for negligently maintaining the premises. A Massachusetts superior court granted summary judgment to the City based upon its interpretation of M.G.L. c. 21, ยง17C, often referred to as the Massachusetts "Public Use Statute." Under the Public Use Statute, negligence claims against a landowner are barred if the landowner has opened its land for use by the public without charging a fee. According to the lower court, because the land on which the plaintiff slipped and fell was owned by the City and open to the public without a fee, the plaintiff's case against the City was barred.

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May 16, 2014

Roofer's Death Results in Nearly $120,000 in Proposed OSHA Fines

On November 14, 2013, a roofer working with Fairview Contractors Inc. fell to his death while performing roofing work at a condominium in Stockbridge, Massachusetts. According to a recent news release from the Occupational Safety & Health Administration (OSHA), OSHA's investigation into the incident resulted in citations to the employer for two willful violations for the lack of fall protection, and for five serious violations for additional hazards. Those violations were as follows

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May 13, 2014

Personal Injury Damages Not the Only Damages Recoverable Under Massachusetts Dog-Bite Statute

In a recent decision, the Massachusetts Appeals Court analyzed M.G.L. c. 140, s. 155 - commonly referred to as the Dog-Bite Statute - and the damages available under the statute when a dog causes those damages.

As Parker | Scheer has previously discussed, the Dog-Bite Statute imposes strict liability on the owner or the keeper of a dog, if that dog causes personal injuries or death to a person. In other words, a person harmed by a dog need not prove that the dog's owner was negligent, or that the owner should have known that the dog was dangerous to others and should have taken protective measures. Unless it is shown that the injured person teased, tormented, or abused the dog, under the statute, the owner is automatically liable for the injuries the dog caused.

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May 9, 2014

DIA Affirms Workers' Comp Award to Employee Who Suffered Neck Injury

Pursuant to a decision last week from the Massachusetts Department of Industrial Accidents Reviewing Board (DIA), an employee who suffered a neck injury on the job prevailed in securing total disability benefits for that injury, but was denied benefits for the claimed aggravation of his pre-existing lumber injury.

In Corazzini v. Diamond Chevrolet, the employee worked as a manager and salesperson for the employer car dealership. As part of his duties, the employee was responsible for snowplowing the employer's lot. In January 2009, after operating a front-end loader to remove snow from the employer's lot, the employee slipped backwards onto the concrete while dismounting the machine.

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