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BEAGAN LAW OFFICE WINS APPEAL OF CLIENT’S WORKER’S COMPENSATION CLAIM

It has been a busy first half of 2016, as Beagan Law Office continues to expand its representation of clients in personal injury, worker’s compensation, family law and general civil litigation matters.    Sometimes it is necessary to appeal a case when a client receives an unfavorable verdict and Beagan Law Office has the experience and knowledge to pursue a client’s case through the appellate stages.   Beagan Law Office is pleased to announce that on May 16, 2016, the Massachusetts Appeals Court rendered a decision in favor of our client in an appeal of a worker’s compensation case.

Attorney Sean M. Beagan won the case initially at the Department of Industrial Accidents following a Hearing before an Administrative Judge.   The insurer appealed and the Reviewing Board of the Department of Industrial Accidents reversed the decision of the Administrative Judge.  Our client’s only option at that point was to pursue an appeal to the Massachusetts Appeals Court.  An appeal to the Appeals Court is a time consuming process, requiring a great deal of research, writing and editing by the attorney and not all attorneys are willing or equipped to handle such an undertaking.  However, the effort is necessary sometimes to see that justice is done for a client.

An appeal was filed and an appeal brief was submitted.  The case was argued before the Appeals Court and fortunately the Appeals Court reversed the Reviewing Board and reinstated the favorable decision of the Administrative Judge. The Worker’s Compensation Insurer filed a request for Further Appellate Review to the Supreme Judicial Court and Beagan Law Office submitted a written opposition.   The Supreme Judicial Court denied the request for Further Appellate Review on July 21, 2016.

The end result of this work is that the client is entitled to payment of the medical bills he had accrued and payment of future reasonable and necessary medical treatment for the injured body part for the rest of his life.  This victory could not have been accomplished without the hard work of associate attorney, Raeha Noel and the staff at Beagan Law Office.  The full decision of the Appeals Court follows.

 

 

 

 

Daniel Wilson’s Case.

 No. 15-P-112.

 APPEALS COURT OF MASSACHUSETTS

2016 Mass. App. LEXIS 53

March 22, 2016, Argued

May 16, 2016, Decided

 


PRIOR-HISTORY:    Suffolk. Appeal from a decision of the Industrial Accident Reviewing Board.

HEADNOTES-1 Workers’ Compensation Act, Injuries to which act applies, Decision of Industrial Accident Reviewing Board, Findings by administrative judge, Expert opinion.

COUNSEL: Sean M. Beagan for the employee.

John J. Canniff, III, for the insurer.

JUDGES: Present: Cypher, Wolohojian, & Carhart, JJ.

OPINION BY: CYPHER

OPINION

Cypher, J. Daniel Wilson appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents (DIA), which reversed a decision of the administrative judge in favor of Wilson, and dismissed his claim. We reverse the dismissal of the claim and reinstate the decision of the administrative judge in favor of Wilson.

Wilson worked as a heavy equipment mechanic for Southworth Milton in 2006 when he was injured while repairing a hydraulic pump in a truck. Wilson was on his stomach, lying across the transmission of the truck with both arms fully extended in front of him. While using a pry bar in an attempt to skirt the weight on the back of the ninety-pound pump, he felt a stabbing pain in his neck, upper back, and both shoulders. Approximately nine days later Wilson was treated with a cortisone shot. Wilson testified that at that time his left shoulder felt tender, although his right shoulder was much worse.

In September, 2007, surgery was performed on Wilson’s right shoulder. Wilson returned to work five and one-half weeks after his surgery and, as advised by his surgeon, Dr. Peter Noordsij, relied more on his left arm to compensate for lack of use of his right arm. Wilson’s left shoulder pain increased.

Wilson filed a claim for worker’s compensation. Sentry Insurance Company (Sentry) settled the claim in 2008 with an approved lump sum payment of $2,500 to Wilson and an award of $5,000 for attorney’s fees to Wilson’s attorney.1 See G. L. c. 152, §§ 19, 23. The 2008 settlement agreement specified that it covered injuries to Wilson’s right shoulder, neck, and upper back.

1   Before entering into the lump sum agreement, Sentry required that Wilson sign an earnings report. Sentry’s attorney did not disclose to Wilson that Sentry had information that Wilson had been working and earning wages while receiving worker’s compensation benefits. Once Wilson signed the earnings report, Sentry immediately threatened to charge Wilson with insurance fraud if he did not settle his case for $2,500. His employer reported him for insurance fraud, and he was prosecuted and found guilty by a jury. The conduct of Sentry’s attorney and the validity of the lump sum agreement is not before us.

Wilson continued to suffer bilateral shoulder pain after the lump sum award but was unable to obtain medical benefits. In 2011, Wilson filed a claim for payment of medical benefits for treatment of his left shoulder, as well as his right shoulder, from the 2006 industrial accident. Sentry disputed Wilson’s claim, and Dr. Ralph Wolf, an impartial medical examiner2 (IME), was appointed to examine Wilson. Dr. Wolf provided a written report indicating that Wilson’s left shoulder injury “was secondary” to the industrial accident and noting that “the patient did not report left shoulder pain … until one year post injury.” In his deposition, Dr. Wolf testified that his opinion was based on the history provided by Wilson. In his deposition on cross-examination Dr. Wolf testified that:

“The patient, if I understood correctly, felt he had no other explanation for his shoulder pain on either side, except the 2006 work injury. The reason I ended the paragraph the way I did was that it’s unusual for [someone] not to report, or for someone not to have noticed that there was pain in the opposite shoulder within a few days of the 2006 injury. In fact, that it was 2007 before he mentioned to me about this, it makes you think that maybe the left shoulder had evolved from some other source.”

2   Dr. Wolf was also the IME in Wilson’s original claim.

Wilson testified at the hearing before the administrative judge that, at the time of the accident, he had pain in both shoulders, but that the pain in his right shoulder was worse than the left shoulder and that, as time went on, the pain in his left shoulder began to increase. In addition, the administrative judge had before him ten exhibits (including the Sentry nurse manager note), Dr. Wolf’s written opinion, and depositions of Dr. Wolfe and Dr. Noordsij. The administrative judge stated in his findings that he relied on the credible testimony of Wilson and the persuasive medical opinions of Dr. Wolf.

The administrative judge found that Wilson’s left shoulder injury was causally related to the industrial accident in 2006 and ordered Sentry to pay all reasonable and necessary medical expenses. See G. L. c. 119, §§ 13, 30. In making findings, the administrative judge may give decisive weight to the credible testimony of the employee and also may weigh any separate medical evidence. See Dalbec’s Case, 69 Mass. App. Ct. 306, 314-315, 867 N.E.2d 792 (2007). “Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.” Pilon’s Case, 69 Mass. App. Ct. 167, 169, 866 N.E.2d 977 (2007). The board’s decision fails to recognize that credibility findings made by the administrative judge “are to be considered final by both the reviewing board and an appellate court.” Carpenter’s Case, 456 Mass. 436, 441, 923 N.E.2d 1026 (2010).

We review the board’s decision in accordance with the standards set forth in G. L. c. 30A, § 14(7), governing appeals from final administrative agency decisions, but “we do not review whether the board’s decision was supported by substantial evidence.” Wadsworth’s Case, 461 Mass. 675, 679, 963 N.E.2d 1181 (2012). See G. L. c. 152, § 12(2). We may reverse or modify the board’s decision where it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law. See G. L. c. 30A, § 14(7)(c),(g). Similarly, the board may reverse the decision of an administrative judge only where it is “beyond the scope of his authority, arbitrary or capricious, or contrary to law.” G. L. c. 152, § 11C, as amended by St. 1991, c. 398, § 31. See Hick’s Case, 62 Mass. App. Ct. 755, 763, 820 N.E.2d 826 (2005). Thus, where the board reverses an administrative judge’s decision based on a finding of fact, we must determine “whether the board was arbitrary or capricious in concluding that the administrative judge was arbitrary or capricious.” Wadsworth’s Case, supra at 679.

The board concluded that Dr. Wolf provided two irreconcilable opinions and that the administrative judge mischaracterized his medical opinion. According to Sentry, the board was correct because the administrative judge cannot select which of the testimony to credit. The problem for Sentry, however, is that Dr. Wolf did not provide two irreconcilable opinions. Although Dr. Wolf expressed uncertainty in light of the length of time that he believed had passed between the initial injury and the claim for injury to Wilson’s left shoulder, such concern does not create two contradictory opinions. Furthermore, it is clear from Dr. Wolf’s testimony that he did not realize that Wilson had, in fact, complained of left shoulder pain at his first contact with the nurse practitioner, and that this complaint was documented. When the doctor’s testimony is read as a whole and in context with the other evidence there is no contradiction.

The board’s focus on the fact that Dr. Wolf testified in his deposition that what he believed to be a delay in reporting the left shoulder injury caused him some concern does not change what Dr. Wolf ultimately set forth in his written report. The testimony of a medical expert should be considered as a whole. See Duggan’s Case, 315 Mass. 355, 358, 53 N.E.2d 90 (1944). See also Nason, Koziol, & Wall, Workers’ Compensation § 17.24 (3d ed. 2003).

The board also ignores Wilson’s testimony and, significantly, the August 26, 2006, record entry of the nurse case manager, Mara Carofaniello, who noted that Wilson was complaining of bilateral shoulder pain in the days following the accident, as well as the subsequent references to left shoulder pain in both Wilson’s physical therapy notes in September, 2007, and in the records of Wilson’s orthopedic surgeon, Dr. Noordsij, in June, 2008.3 There is no requirement that the causal connection be shown by expert testimony alone. See McAuliffe v. Metcalfe, 289 Mass. 67, 69, 193 N.E. 581 (1935).

3   On June 17, 2008, Dr. Noordsij noted that Wilson complained of “left shoulder pain.”

The administrative judge acted within his discretion when he found that a causal relationship existed between the industrial accident and Wilson’s left shoulder injury, where he found Wilson to be credible in his testimony as to the nature and cause of his left shoulder injury. In addition, Dr. Wolf, the IME, testified that he had based his opinion as to causal relationship in his written report on the history provided by Wilson. An employee is not required to exclude all other possible causes, and recognition by the IME of the possibility of other causes does not destroy the probative force of his testimony. See Blanchard’s Case, 277 Mass. 413, 415, 178 N.E. 606 (1931). See generally Nason, Koziol, & Wall, Workers’ Compensation § 17.24 & n.2 (3d ed. 2003).

 

Decision of reviewing board reversed.

BEAGAN LAW OFFICE, LLC: 2015 YEAR IN REVIEW

2015 was another great year for Beagan Law Office, LLC.   Founded in 2007, the Office has continued to grow each year and I want to thank the clients, my fellow attorneys and my family and friends who continue to refer new clients to the office.    We are ready for another exciting year in 2016.

The following is a sample of the types of legal matters in which Beagan Law Office, LLC represented clients over the past year:

  1. Motor Vehicle Accidents – Attorney Beagan successfully settled numerous cases on behalf of clients who were injured.  Lawsuits were filed on behalf of several clients whose cases were either denied or which were not properly valued by the insurance company representing the negligent driver.   Beagan Law Office, LLC will not hesitate to pursue a client’s case in the courts if that is what is necessary to obtain a fair settlement.
  2. Divorce/Child Custody/Child Support – Beagan Law Office, LLC continues to represent individuals in divorce, child custody and child support and that area of the practice continues to grow quickly as clients refer their friends and family to the firm after successful resolution of their own case. These cases often call for the firm to appear not only in the Probate and Family Court but to be ready to respond to restraining orders in district court and to assist clients dealing with administrative agencies such as the Department of Children and Families.
  3. Premises Liability/Slip and Fall – Attorney Beagan settled multiple cases involving clients who sustained injuries on property owned by another person or company, including supermarkets apartment buildings or a client’s place of work. Beagan Law Office, LLC currently has several premises liability cases being litigated in the Superior Courts of Massachusetts.
  4. Workers Compensation: Attorney Beagan represented numerous clients before the Industrial Accident Board on worker’s compensation cases, obtaining both awards of benefits and settlements for clients. Clients included employees in private industry, state employees and employees with injuries caused by third-parties.   Often times, Worker’s Compensation cases also involve claims for social security disability benefits or public employee retirement benefits and Beagan Law Office, LLC represents clients in these claims as well, thus handling and coordinating all aspects of the client’s claim to achieve the best resolution possible.
  5. Social Security Disability – Attorney Beagan represented disabled clients at hearings before the Social Security Administration and obtained both retroactive and ongoing social security disability benefits on their behalf.
  6. Probate Litigation – Attorney Beagan represents clients in matters of Probate litigation involving disputes over inheritance and estates. Beagan Law Office, LLC has successfully litigated Will contests and matters involving disputed gifts and is familiar with the particular procedures of the Probate and Family Court that must be followed in order to preserve a client’s rights in that court.
  7. General Civil Litigation – Attorney Beagan continues to represent clients in both the District and Superior Courts of Massachusetts in general civil litigation matters, including contract and real estate disputes.

In addition to Attorney Sean Beagan, who brings his 16 years of experience to the firm; Attorney Raeha Noel, has been with the firm for two full years and has successfully represented clients in matters of child support, custody, divorce, guardianship and personal injury, in addition to assisting Attorney Beagan on all cases.

Ilda Almeida brings 20 years of administrative experience handling pre-litigation aspects of personal injury claims and the personal injury practice would not be the same without her expertise and attention to the clients and their individual needs.

Please visit our website at www.beaganlaw.com to learn more about the attorneys and staff of Beagan Law Office, LLC and how we can assist you.   We appreciate your continued support as Beagan Law Office, LLC continues to grow and we enter 2016.  As always, you can contact Attorney, Sean M. Beagan at 781-393-9948 or via email at sbeagan@beaganlaw.com.

Best Wishes for a healthy and prosperous 2016,

Sean M. Beagan

THE VERDICT IS IN

I just completed a five-day jury trial.   Fortunately, the jury returned a verdict in my client’s favor.  There is nothing quite like the experience of waiting for a jury to return a verdict.  In this case, the jury deliberations carried over into a second day, which made the waiting that much more intense.   This was a civil case, so no one was going to jail if the jury came back against my client but the stress involved in trying a case before a jury is always intense no matter what issue is being litigated.  Your client is usually totally invested emotionally and as the attorney you are battling to keep your own emotions and your client’s in check.  There are countless hours of preparation that go into getting ready for a trial.  Exhibits and witnesses must be prepped as best as possible,  as any error made during the trial could be the one thing the jury decides to base their decision on.   By the time you make your closing arguments, hopefully you have presented the best case for your client and the jury will find that you have satisfied your burden of proof.  The thing is, you never know what a jury is thinking.  You guess, you hope but you never know.  The longer the jury deliberates, the more you wonder.

When the announcement is made that the jury has reached a verdict the anticipation in the court room is palpable.  The jury is brought into the courtroom.  The verdict slip is handed to the judge.  The judge reviews it without expression and hands it to the clerk.  All the while you sit there with your client waiting to hear the result.   When the clerk asks the jury foreman how they found and the foreman states the verdict is in your client’s favor, a wave of relief and satisfaction sweeps over you.  It is the same every time and it never gets old.  In my opinion, this experience cannot be matched by any other in the practice of law. 

Very few cases actually go all the way to trial and the ones that do are usually the toughest cases, making the jury verdict all the more special.  My client felt vindicated to be told by a jury of his peers that he was not in the wrong and to receive an award of money and I felt great to have helped him achieve his goal.  Of course the victory would not have been possible without my staff in the office assisting me in the preparation and holding down the fort while I was essentially out of the office for five days.

                If you find yourself in the position of needing to file a lawsuit or if you have been sued and need to defend yourself, consider calling Sean M. Beagan, Esq,  and the staff at Beagan Law Office, LLC.  4 River Street, Medford, MA    781-393-9948 or email at sbeagan@beaganlaw.com.

BEAGAN LAW OFFICE, LLC QUARTERLY REVIEW

The first quarter of 2014 is already over and it’s time for a post-quarter review.   In the past three months alone, the attorneys and staff at Beagan Law Office, LLC have represented clients in the following types of matters:

  1. Successfully mediated a premises liability case involving a fall on ice in a parking lot after a year of litigation in the Superior Court;
  2. Settled multiple cases involving motor vehicle accidents, including cases involving minors which required court approval of the settlement;
  3. Settled multiple cases involving premises liability/slip and fall;
  4. Represented numerous clients before the Industrial Accident Board on worker’s compensation cases;
  5. Represented multiple clients in both divorce and custody cases in the Probate Courts;
  6. Represented multiple clients in the sale and purchase of residential and commercial real estate by reviewing and preparing purchase and sales agreements; drafting deeds and attending real estate closings;
  7. Represented disabled clients at hearings before the Social Security Administration;
  8. Represented clients in the District Courts of Massachusetts
  9. Prepared an Appeal Brief for a client on a case pending before the Appeals Court for the District Courts of Massachusetts;
  10. Filed a lawsuit in Superior Court and successfully recovered money owed to a client as a result of a fraudulent business transaction;
  11. Filed multiple lawsuits in both the District and Superior Courts on behalf of clients to assert their rights in court in a variety of cases, including contract and personal injury cases;
  12. Represented clients in contested cases in Probate Court involving the distribution of estates of deceased persons;
  13. Represented individuals with cases involving the City of Medford on a variety of issues;
  14. Represented clients in criminal matters pending in the District Courts;
  15. Provided basic estate planning advice to clients and drafted wills and trusts.

As you can tell, it has been a very busy three months and we have our clients to thank for continuing to call upon Beagan Law Office, LLC for their legal needs.  Please visit our website at www.beaganlaw.com to learn more about the attorneys and staff of Beagan Law Office, LLC and how we can assist you.   We appreciate your continued support as we prepare for the second quarter and beyond.  As always, you can contact Attorney, Sean M. Beagan at 781-393-9948 or via email at sbeagan@beaganlaw.com

Sincerely,

Sean M. Beagan

RECORD THAT MORTGAGE DISCHARGE

                                                 

                 As spring approaches you may be considering selling your home.  A common legal issue that arises during the course of a real estate transaction is that a discharge of an old mortgage was not recorded at the Registry of Deeds when the mortgage was paid off or re-financed with a new loan.   A mortgage is a document that provides a lender security for the loan the lender made to you; usually as a result of a purchase or refinance of your house.  A mortgage discharge is a document that tells anyone interested that the mortgage is released and the lender no longer has a security interest in your property.   In most cases, a new lender wants to see that all prior mortgages have been discharged before it lends you money and records its own mortgage.   The reason for this is that the lender wants to make sure it has priority over any other mortgages in the event that the lender needs to foreclose or you sell your home in the future.

If as a result of the lender’s examination of the title to your home, it is revealed that a discharge is missing, the lender will ask you or your attorney to locate the missing discharge before the sale can be completed.  A missing discharge can represent a final hurdle in the sale of a home and can cause anxiety for the buyer and seller.  

Often times the missing discharge is in a file in the owner’s home with his important personal papers.   The Owner was mailed the discharge when the loan was paid off and did not understand that the document needed to be recorded at the Registry of Deeds.   In this case, it is just a simple matter of taking the document to the Registry of Deeds, paying a $75.00 fee and recording the discharge. 

                If the owner does not have the discharge it may be that the attorney who handled a prior refinance forgot to record the discharge of the old mortgage or the old lender never issued the discharge, or it is simply unaccounted for.  I have seen all three of these situations at various times.  In these cases, you most likely will need an attorney to track down the original discharge or contact the old lender to issue a confirmatory discharge that can then be recorded at the Registry of Deeds. 

 If you have paid off a mortgage in the past or you have refinanced your home, check your personal papers to make sure there are not any discharges that need to be recorded at the Registry of Deeds.   It is a simple step that may save you some anxiety and additional attorney fees in the future. 

Beagan Law Office, LLC and Beagan Realty Group, LLC are available to handle your real estate needs.  If you require legal representation in a real estate matter please call attorney Sean Beagan at 781-393-9948 or email sbeagan@beaganlaw.com.  If you are seeking a top-notch real estate agent call Paul Gerety at 781-760-8633 or email at pgerety@beaganrealty.com

WHAT IS THE VALUE OF MY PERSONAL INJURY CASE?

 

That is a question I often hear from clients and my initial answer is always the same. 

That answer is:  “It depends.”   

There are two main elements of a personal injury case that must be considered before a value can begin to be assigned to a case.  The elements are “liability” and  “damages.”

  1. LIABILITY:   A determination must be made as to who was responsible for causing your injury.  Liability is determined by examining the facts of the case.  Liability can be obvious.  This would be the case if your car was struck from behind while you were stopped at a red light. Liability can be questionable, such as in the case of a person slipping on spilled milk in a supermarket; where questions such as how long the milk was on the floor, can make the issue of the store’s liability much less clear.  Photographs and witness statements obtained at the time of the accident, or secured as soon as possible thereafter, can be great evidence in helping to establish liability.  Finally, there may be no liability, such as would be the case if you caused the accident.

 

  1. DAMAGES:  If a determination can be made that someone else was liable for your injuries, then your “damages”  must be calculated.  Damages are calculated by evaluating the severity of the injuries involved, cost of present and future medical care related to the injuries, lost wages and future loss of income and if you are married, may also include loss of consortium, which is the loss of your services to your spouse as a result of your injury.   Other items that can come into play in evaluating damages could include lacerations resulting in scarring or psychological injury.

Liability and Damages are not mutually exclusive and you must establish both in order to recover for your injuries.   For example, you could have sustained very serious injuries in an auto accident but if the accident was your fault, then you would not be entitled to be compensated for those injuries.  On the other hand, the accident could clearly be the fault of the other driver but if you were not injured in the crash you would not be entitled to be compensated beyond the damage to your car. 

An attorney familiar with personal injury cases will be able to properly present your case to an insurance company, such that the issues of liability and damages are presented in the best possible light to maximize your recovery.   Only when these issues have been fully analyzed, can an attorney begin to place a value on a personal injury case.  The process can take a few months to a year or more, depending on the complexity of the injuries involved and whether liability is being disputed.  No two cases are exactly the same but similar cases tend to have similar values within a relative range.  It is often the case that neither the issue of liability nor damages is entirely clear.  It is in these situations where it is essential to have an attorney with the experience to properly present and evaluate your personal injury case and to provide you with the information you need to make a decision as to whether your case should be settled or pursued in the courts. 

Attorney Sean M. Beagan has been handling personal injury cases for 15 years.  He and his staff at Beagan Law Office, LLC handle personal injury cases on a daily basis.  You can contact Attorney Sean M. Beagan at 781-393-9948 or via email at sbeagan@beaganlaw.com

A MAN FOR ALL (REAL ESTATE) SEASONS

 

          As many of my clients know from the sign on my office windows, in addition to Beagan Law Office, LLC, I also own Beagan Realty Group, LLC.  Beagan Realty Group, LLC was formed in 2008 when Paul Gerety agreed to leave the agency he was with and join me and offer his services as a real estate agent under my company name.  Although the company bears my name, Paul is the heart and soul of the operation.  Since that time Paul has represented buyers and sellers of residential real estate in Medford and the surrounding communities under the Beagan Realty Group name.  Those clients who have had the privilege of working with Paul over the past several years, know that when you hire Paul you are getting more than an excellent Realtor; you have also gained a friend whose loyalty to you will not waiver. 

            As the selling season approaches, Paul is ready to assist you in buying or selling a home.  If you have used Paul as your realtor in the past, congratulations! Please spread the word.  If you have not had the pleasure of meeting Paul, do yourself a favor and consider him before selecting your real estate agent.  Paul has launched a new website design for 2014, with many useful features for both buyers and sellers.  Please visit the website at beaganrealty.com.  You can always reach Paul on his cell at 781-760-8633 or via email at pgerety@beaganrealty.com  or contact me, Sean Beagan, at 781-393-9948 or via email at sbeagan@beaganlaw.com and I will be happy to introduce you.