Willful Misconduct By Employer

Massachusetts Attorneys Skilled in Workers’ Compensation Matters

In most circumstances, incidents giving rise to a workers’ compensation claim are the result of an accident or unfortunate circumstances where an employee is unexpectedly hurt. For instance, a worker may accidentally drop a large piece of equipment, breaking a toe or injuring his or her back. However, in rare circumstances, workplace injuries may be the result of willful misconduct by an employer. When this occurs, Massachusetts law provides for additional damages to be awarded to employees to compensate them for their harm and the suffering they have experienced. At Kantrovitz & Associates, our workers’ compensation lawyers can help injured individuals throughout Massachusetts investigate whether they have been victims of willful misconduct in the workplace and whether additional damages awards may be available.

Section 28

Section 28 of the Massachusetts workers’ compensation law provides that employees who are the victims of serious and willful misconduct should be paid twice the amount of compensation to which they would normally be entitled as workers’ compensation benefits. Since the implementation of this law, Massachusetts courts have held that workers who are victims of the egregious conduct of their employers are entitled to this “double” compensation even if they never miss a day of work. Thus, if an employee experiences an injury that requires medical treatment, but does not prevent him or her from doing the job, he or she is entitled to double the amount of medical bills incurred as a result of the injury. This is because Section 28’s penalty against employers is very broadly applied.


Establishing Serious and Willful Misconduct

Although it is tempting to allege that your workplace injury was a result of your employer’s misconduct because the safety of your work environment was below par, the test for serious and willful misconduct is a difficult one to meet. Most importantly, it requires that the conduct of your employer was intentional or highly reckless, rather than merely forgetful or negligent. Specifically, Massachusetts courts have held that an employee must show that the employer did or failed to do an act that a reasonable person would know or would have reason to know would create an unreasonably high risk of bodily harm. It also must be shown that there was a high degree of likelihood that substantial harm would result.

Under this standard, an employer’s failure to account for all possible safety issues is unlikely to rise to the level of serious and willful, especially if an employee’s injury resulted from circumstances that could not reasonably be anticipated, such as faulty machinery. However, if the employer knowingly violated safety rules or placed an employee in an obviously dangerous situation, that employee may very well be entitled to double damages under Section 28.


Explore Your Options After a Work Injury with a Massachusetts Lawyer

If you were the victim of a workplace accident that you believe was caused by the unreasonable actions of your employer, or an unreasonable failure to properly follow necessary safety requirements, you may be entitled to extra damages under Section 28. It will be important to properly document exactly what happened to you at the time you were hurt, and any involvement or decisions that your employer may have made. Proving serious and willful misconduct is not easy and will require extensive documentation to support your claim. The work injury attorneys at Kantrovitz & Associates are strong advocates against willful misconduct by Massachusetts employers and will work with you to determine whether you have a feasible Section 28 claim. If so, we will do our best to fight for your right to double compensation. Feel free to contact us at (800) 367-0871 or online.

Many of our clients come from Boston as well as the Merrimack River area and communities throughout New Hampshire and Rhode Island.

Workers’ Compensation