Zucco v. Kane6/6/2002
his then 25 year old L.P.N. alleges to have injured her ankle when she twisted her foot while walking up a flight of stairs. The case was accepted. Section 34 benefits have been paid to date. The employee received conservative treatment for a diagnosed left foot sprain. When symptoms persisted, she was referred to a neurologist. Diagnosis was reflex sympathetic dystrophy. Treatment has consisted primarily of medications and nerve blocks. The employee has reached maximum medical improvement."
"This payment is received in redemption of the liability for all weekly payments now or in the future due me under Worker's Compensation Act for all injuries received by me; Catherine Zucco on or about April 4, 1990 while in employ of Loomis House."
The redacted agreement was subsequently introduced, over the plaintiff's objection, as an exhibit.
3. Admissibility of settlement agreement. The plaintiff claims that questioning her with respect to the settlement document, and its subsequent admission, in order to suggest that her RSD was caused by the April 4, 1990, injury and not by Dr. Kane's October, 1990, examination, was prejudicial error and a mischaracterization of her statements. In general, as the plaintiff claims, both under settled legal principles, see Murray v. Foster, 343 Mass. 655, 660 (1962); Morea v. Cosco, Inc., 422 Mass. 601, 602-603 (1996), and under workers' compensation law, see Ricciutti v. Sylvania Elec. Prod. Inc., 343 Mass. 347, 349 (1961), compromise or settlement agreements are not admissible. See Liacos, Massachusetts Evidence § 4.6, at 187 (7th ed. 1999) ("offer to compromise a dispute is not admissible in evidence as an admission of the validity or invalidity of the claim"). There is, however, precedent for allowing statements of fact made during negotiations to be admissible. See Wagman v. Ziskind, 234 Mass. 509, 511 (1920); Puzo v. Puzo, 342 Mass. 775, 775 (1961). See also Calvin Hosmer, Stolte Co. v. Paramount Cone Co., 285 Mass. 278, 281-282 (1934). See generally Liacos, Massachusetts Evidence § 4.6, at 189 (7th ed. 1999).
A number of considerations lead to the conclusion that the statements in the lump sum agreement are not admissible under the rule of these cases. First, Proposed Mass.R.Evid. 408, set forth in the margin, which is now in accord at least in some respects with Massachusetts law, see Morea v. Cosco, Inc., 422 Mass. at 604 & n.4, does not permit statements "to prove liability for, invalidity of, or amount of the claim or any other claim" (emphases supplied). The workers' compensation statute, in G. L. c. 152, § 48(5), set forth in the margin, may also preclude admission of such statements as it provides that a lump sum agreement shall "affect only the insurer and employee who are parties to such lump sum agreement and shall not affect any other action . . . arising out of a separate and distinct injury resulting in an incapacity" (emphasis supplied). In another context this provision has been construed to be unambiguous. See Kszepka's Case, 408 Mass. 843, 846 (1990). At the least, the statute casts doubt on whether the plaintiff's lump sum agreement can "affect" this action which arises out of an alleged "separate injury" resulting in an alleged "incapacity."
We need not, however, determine whether the plaintiff's statements in the lump sum settlement agreement are independently excludable under Proposed Mass.R.Evid. 408 or G. L. c. 152,
§ 48(5), because we conclude that the considerations prompting both the rule and the statute, when coupled with the lack of probative force of the admissions in the context of the workers' compensation law, require their exclusion. See LePage v. Bumila, 407 Mass. 163,
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