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Massachusetts Reviewing Board Holds Employee Committed Serious and Willful Misconduct in Attacking Employer, Not Entitled to Compensation for Alleged Personal Injuries

In an appeal brought after an employee was denied claims for weekly and medical workers’ compensation benefits, the Massachusetts Department of Industrial Accidents Reviewing Board upheld the judge’s decision. The Board held that the judge had properly denied the employee’s request to include evidence set forth in his hearing before the Massachusetts Division of Unemployment Assistance (DUA).classroom

The 62-year-old employee worked for the employer, the Town of Milton, as a custodian for public schools.  He was involved in an altercation, both verbal and physical, with the Director of Facilities for the Milton Public Schools. After the employer investigated the incident, he terminated the employee.

The employee then filed a claim for benefits, alleging that he suffered severe emotional distress due to the incident. The claim was denied at a conference order and tried.   The insurer argued the employee committed serious and willful misconduct, preventing him from recovering workers’ compensation under § 27. Additionally, the insurer alleged the termination was a bona fide personnel action under § 1(7A), which precluded him from receiving compensation.

It was stipulated at a hearing that the employee had received unemployment benefits after a hearing before the Board of Review of the DUA.  In his workers’ compensation case, the employee filed a motion to prevent relitigating the issues determined in the unemployment hearing on res judicata grounds, and to require the judge to adopt the facts found in the DUA hearing.  The judge denied the motion.

After hearing testimony from witnesses to the underlying incident, the workers’ compensation judge made factual findings, crediting the testimony of the Director of Facilities and the Supervisor of Custodians. The judge found the employee had been the aggressor in the altercation, and he had intentionally and physically attacked the Director of Facilities.  The employee’s actions, according to the judge, consisted an act that he would know or have reason to know would create an unreasonable high risk of bodily harm, involving a high degree of probability that substantial harm would result.  Additionally, the judge stated that the attack took place outside of incidents of custodial employment.  This was, according to the judge, “quasi criminal” conduct.

The judge found the employee’s termination after the assault was a bona fide personnel action.  This action, according to the judge, was a disciplinary response to the fact that a supervisor had been assaulted.  The employee’s alleged emotional or mental injury was not a personal injury, and the judge stated that any alleged injuries set forth by the employee were not compensable under § 27 or § 1(7A).  Section 1(7A) makes clear that a mental or emotional disability that stems from bona fide personnel actions is not considered a personal injury.

On appeal, the employee argued the judge erred when he denied the employee’s evidence of his DUA H=hearing.  He contended that res judicata and issue preclusion applied to the DUA hearing decision. In other words, the employer should not be able to relitigate findings made in hearings before the DUA.

The Board stated that res judicata principles apply in workers’ compensation proceedings.  There is both claim preclusion and issue preclusion (also known as collateral estoppel), and in this case, the employee sought to use issue preclusion in an offensive way to show the facts of the unemployment hearing decision.  According to the Board, this is not the intended use of collateral estoppel.

Turning to another case in which the court held that an employee may not use collateral estoppel affirmatively, the Board stated that in this case, the employee had not proven all of the elements of issue preclusion.  He had shown that there was a final judgment on the merits in the District Court decision. But the unemployment and workers’ compensation actions did not involve the same parties or their privies.

Next, the Board rejected the contention that the judge should have made different credibility findings, based on the unemployment decisions.  It is a question of fact as to whether the employee was guilty of serious and willful misconduct. Here, the Board stated the judge applied the proper standard in determining that the employee’s conduct was “quasi criminal” and that a reasonable person would know that it created an unreasonably high risk of bodily harm that involved a high degree of probability that substantial harm would result.  As a result, the Board stated that the judge’s findings that the employee engaged in serious and willful misconduct were not unwarranted based on the evidence.

The Board affirmed the decision.

The Massachusetts workers’ compensation attorneys at Pulgini & Norton offer skilled legal representation for individuals pursuing workers’ compensation benefits.  If you or a loved one has been hurt in a job-related accident, you may be entitled to compensation for medical expenses, lost wages, and other benefits.  Contact us today to discuss your claim and receive a free consultation with an attorney. We can be reached by calling (781) 843-2200 or completing our online form.

More Blog Posts:

Reviewing Board Holds Judge Made Findings Contrary to Medical Evidence and Massachusetts Workers’ Compensation Rules of Law Concerning Modification of Benefits Award, Massachusetts Workers’ Compensation Lawyer Blog, December 22, 2016

Massachusetts Reviewing Board of Industrial Accidents Affirms Dismissal of Employee’s Claim for Psychological Impairment from Injury when Employee Failed to Pay Share of Medical Examination as Agreed, Massachusetts Workers’ Compensation Lawyer Blog, August 25, 2016

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