In a recent opinion by the Supreme Judicial Court, the central issue was whether the Massachusetts Insurers Insolvency Fund (Fund) could recover for costs paid on behalf of a high-net-worth insured employer. The court found in favor of the Fund, noting policy considerations as well as the notion that themoney benefits had been paid “on behalf of” the Bank.  In their analysis, the court looked at the relationship created between the Fund and the employer, stating that the insurer acts under a contract to satisfy the legal obligation of the employer.

The facts of this case indicated that a bank employee suffered injuries while lifting coin-filled bags.  She sought and received workers’ compensation benefits, first under section 34 for temporary total incapacity benefits and then section 35 benefits for partial incapacity.  After her entitlement to section 35 benefits was exhausted, she sought permanent and total disability compensation.  The Fund agreed to pay her future medical costs from the injury, as well as a lump sum payment of $85,000.  They then sought to recoup payments from the Bank.

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The Massachusetts Reviewing Board of Industrial Incidents recently addressed whether issues concerning workers’ compensation coverage and a bond to pay benefits could be settled without the involvement of the workers’ compensation claimant or the Department oscalesf Industrial Accidents. The Board held such an agreement was contrary to the statute’s requirements concerning maintaining reinsurance.

The employee in this case suffered from asbestosis, which he contracted while working for Polaroid Camera, beginning in 1959.  In 1989, the asbestosis rendered him unable to work, and he was awarded benefits from that point and continuing. Those benefits were paid by the self-insurer and then exhausted.  After that, section 34A benefits were paid, and in 1998, the employee passed away as a result of his injury. His widow then received section 31 survivor benefits.

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In a recent decision, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee who suffered an ongoing aggravation of an underlying shoulder condition. The issue in this case was whether the judge had transformed the employee’s injury claim into one of a repetitive, ongoing stethoscopeaggravation of a condition, when it should have remained an allegation of a single work injury. Additionally, the insurer claimed the successive insurer rule applied, and they were not liable.

The employee in this case was a 54-year-old man who worked for G.P.C. International/Chartpak, Inc. since 1996 as a paper processor and machine operator. The work was fast-paced and required heavy lifting of 75 to over 100 pounds.

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The Massachusetts Supreme Judicial Court recently rendered a decision that affects settlements for injured workers seeking compensation for their injuries.  In DiCarlo v. Suffolk Construction Co., Inc., which included a review of two lower court rulings, the court held a workers’ compensation insurer’s lien does not provide for the reimbursement of non-economic damages recovered as part of a third-party settlement.  This ruling is important because it provides courts with more room to approve reasonable settlements of work-related accident claims involving third parties.


Massachusetts law holds that employees who are injured in the course and scope of their employment and receive workers’ compensation benefits cannot bring a tort lawsuit against their employer for these work-related injuries.  While the advantage of the workers’ compensation scheme lies in the employee not necessarily proving negligence in order to recover benefits, the limitation is that they typically do not recover non-economic damages. Instead, workers’ compensation benefits include lost wages and medical expenses (past and future treatment). Compensation for pain and suffering, which are considered non-economic damages, are not paid by workers’ compensation insurance companies to injured employees.

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A recent appeal before the Massachusetts Department of Industrial Accidents Reviewing Board addressed whether an employee seeking benefits from her employer for work-related injuries was entitled to receive continuing benefits.  In this case, the judge had found that the employee’s ongoing disability was no longer related to her work-related injury, and her benefits were issued in a closed period. The procedural history is complex in this case, but ultimately the Board relied on the policy rationale of ensuring that an employee receives benefits for work-related injuries, as provided by Massachusetts law.


In a previous decision, the judge had awarded section 34 benefits from the date of the work-related injury, July 11, 2011, to July 6, 2012. This was the date that an impartial medical examiner’s report concluded the employee’s work injury was not related to the ongoing partial disability and incapacity she suffered, about one year later.  The employee then appealed this decision on the ground that the judge had denied her motion for a finding of inadequacy regarding this medical report. The Board agreed, stating that the report was confusing and inconsistent.

Then, the judge made findings based on medical opinions in a record that had not been admitted in evidence. The Board vacated the judge’s findings that the employee was partially disabled but that it was not related to her work injury of July 11, 2011. On committing the case, the Board focused on the consideration of additional medical evidence and findings related to benefits the employee would receive after the July 6, 2012 date. They stated this was because her first appeal challenged the part of the decision that terminated her benefits at that date.

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In a recent decision, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed an award of workers’ compensation benefits on behalf of an injured employee who sought total incapacity benefits, meaning that she was unable to work as a result of her injury and requested compensation based on her average weekly wage.  The issue in this case was whether the employee’s work-related injuries were caused by an industrial accident or were a result of prior medical conditions.  According to the employer’s workers’ compensation insurer, the work-related incident did not cause her disability or need for treatment. Ultimately, the Board held the employee’s burden of proof had been met, since her prior medical conditions were in fact work-related and combined with an industrial accident, entitling her to benefits.


From 1972 to 2011, Cheryl Briere worked a certified nurse’s assistant.  Over this period of time, she suffered injuries, some of which were work-related.  Ms. Briere hurt her back in 1994 while lifting a 350-pound man into a car.  She received workers’ compensation benefits as a result of this injury. Four years later, Ms. Briere was injured in a vehicle collision but was not absent from work as a result. Beginning in 1991, Ms. Briere worked for Lowell General Hospital.  She suffered multiple injuries, some of which she reported, and most involved injuries to her back and hips. Unfortunately, in 2004, Ms. Briere was treated for injuries resulting from another vehicle accident. She underwent hip and back pain treatment in 2005 and back and neck pain in 2008.

On the date of the incident at issue, December 4, 2011, Ms. Briere had assisted her co-workers in moving a 400-pound patient. She suffered injuries to her neck, back, and hands. She completed her shift that day and returned on the following day. Two days later, Ms. Briere sought a leave of absence. She contended that the injury she suffered from lifting the patient made it impossible to successfully perform her job.  She did not return to her employment at Lowell General Hospital.

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The death of a 10 year old boy from Kansas while riding the world’s tallest water slide has revived a call for change in the amusement park industry. Many advocates say there is a lack in federal oversight of our nation’s water park safety.

The ten year old boy was killed while sliding down the 168 foot tall water slide located in Kansas City. Details surrounding his death remain unclear. Some witnesses that rode the ride earlier in the day say the harnesses to the ride were not working properly. It appears the boy fell out of the raft and slid down the slide himself and was decapitated. This is a horrific tragedy.

The police said the boy was decapitated in the accident and was found dead at the bottom of the ride in a pool. The two other passengers both suffered minor cuts and scrapes on their face in the incident, according to authorities.

The Company that operates the “Duck Boat” tours in Boston will now require two staffers to be on all duck boats in light of the recent death of a 28 your old women that was struck and killed by a duck boat while riding a scooter. Allison Warmuth, 28, was driving a motor scooter near the Boston Common in April when she was struck and killed by the duck boat. A passenger on the scooter was injured.

The Women’s death also prompted the filing of legislation in Massachusetts that would prohibit duck boat drivers from simultaneously serving as narrator and tour guide on the vehicles. The parents of the women killed when struck by a Duck Boat also pushed for the passage of a bill which would require all duck boats to be equipped with blind spot cameras and sensors. Seattle also imposed new rules, including separate tour guides when a duck boat crashed last year, killing five passengers on the bus.

The majority of the duck boats used for tours are World War II era reproduction vehicles that were not designed navigate busy city streets. Furthermore drivers of the tour bus can be distracted because they sometimes are required to give verbal narratives of historical sites for the patrons. The addition of another employee on a duck boat is a welcome safety procedure. This way, there will be another set of eyes to ensure the duck boat is free and clear of all pedestrians before proceeding. Sensors and cameras will also aid the driver and confirming the boat is free and clear of hazards before proceeding.

road-rage[1]A new study by the AAA Foundation for traffic safety found nearly 80% of drivers expressed significant anger, aggression or road rage behind the wheel at least once in the past year. The study shows that some drivers even resorted to purposefully ramming another vehicle or getting out of the car to confront another driver. The director of the research for the AAA Foundation study said “bad traffic and daily frustrations can transform minor frustrations into dangerous road rage and drivers find themselves lashing out in ways that could turn deadly.”

A significant number of U.S. drivers reported engaging in angry and aggressive behaviors over the past year, according to the study’s estimates:

  • Purposefully tailgating: 51 percent (104 million drivers)

recognitionThe Law Offices of Michael O. Smith has been named as one of the best personal injury lawyers on Boston by Expertise for the year 2016. looked at 285 Personal Injury Lawyers in Boston and picked The Law Offices of Michael O. Smith as one of the top 20.  The List was hand picked by using a number of criteria including:

REPUTATION – A history of delighted customers as a signal of outstanding service.

CREDIBILITY – Building customer confidence with licensing, industry accreditations and awards.