A recent decision by the Massachusetts Department of Industrial Accidents (DIA) Reviewing Board (the DIA’s appeals court) may increase the possibility of some workers’ compensation claimants obtaining double compensation under the “serious and willful” misconduct provision of the workers’ compensation statute. One of the lesser-known provisions of the law, section 28 historically has applied in very few situations.

For an injured employee to qualify for double compensation, the employee must be able to show that the employer’s serious and willful misconduct resulted in the worker being injured. The statute is MGL c.152 §28.

The case began when the employee suffered a serious de-gloving (skin and tissue are pulled away from the body) injury to his upper right arm while working on a production line at a manufacturing facility in 2016.

According to the Reviewing Board opinion, the employee suffered his injury when his right arm was caught in the machine that he was cleaning. Due to his arm being stuck, he could not reach the overhead safety cable to stop it from operating. The employee has been unable to work since the accident.

During the initial trial, the employee’s attorney introduced evidence showing that the machine was equipped with a key to a safety switch on the control panel that put the production line into cleaning mode. The employee testified that his supervisors had never told him about the safety switch.

Co-workers’ testimony showed that they had also not been trained on how to use the safety switch either. They testified that even if they had been trained, the key to the switch was not in place at the time of the accident. The employer argued that it had alternative safety training methods to educate employees.

Based on the evidence at trial the judge ordered temporary total weekly benefits, disfigurement, and permanent impairment benefits. The insurer subsequently filed a complaint to modify or discontinue benefits the following year. During the conference session following the insurer’s motion to modify or discontinue, the employee sought §28 benefits and the judge agreed. The case was eventually appealed to the Reviewing Board.

Historically §28 claims involve some element of bullying on the part of the employer to demonstrate the serious and willful misconduct. This case does not require that element to establish a case of serious and willful misconduct.

In affirming the double compensation award, the Reviewing Board rejected the employer’s argument that §28 requires evidence that the injured employee or other co-workers made specific complaints to the employer about the risk of serious injury from a workplace condition, that the employer disregarded such notice and directed the employee to continue despite the risk.

Instead, the Reviewing Board determined that the employer’s failure to train the employee, its failure to alert the employee to the availability of a safety device designed to prevent the kind of accident he suffered, and its removal of a key to the cleaning mode’s safety switch were the equivalent of compelling an employee to work in a dangerous situation, thus justifying the §28 claim.

The doubling of compensation under §28 applies to all the injured employee’s benefits, including compensation for his loss of function and disfigurement and payments for his medical treatment (the latter payment the claimant may retain for himself). Cases and awards like this highlight the fact that §28 is a punitive provision designed to punish the employer for its behavior, or as in this case, its failure to do something.

In addition to doubling benefits, §28 includes other significant adverse consequences for an employer. The law provides that “In case the employer is insured, he shall repay to the insurer the extra compensation paid to the employee. If a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only.” In other words, the insurer may not defend the §28 component of the claim and the employer will be required to pay for its own attorney as happened in this case.

Cases like this strongly reinforce the need for employers to train employees on all of the manufacturer’s safety features for the machinery they operate. They must also ensure that all employees are aware of and trained on what to do in an emergency.

Companies looking for resources to help them manage safety in the workplace should start by contacting their workers’ compensation carrier’s risk management department. Another great resource is  the  free On-Site Safety Consultation program offered by the Commonwealth’s Department of Labor Standards.

AIM members with questions about this or any other human resources issues may contact the Employer Hotline at 1-800-470-6277.