Massachusetts Employee Fails to Establish Misconduct by Employer in Workers’ Compensation Case

The Massachusetts Department of Industrial Accidents Reviewing Board recently reviewed a decision denying workers’ compensation benefits in the case of Root v. G. Lopes Construction Co. The employee had been burned while working as a heavy equipment operator, and the employer’s insurer accepted liability for the employee’s burn injuries. The employee claimed additional benefits pursuant to § 28, which provides for double compensation in cases in which an employee is injured as a result of the serious and willful misconduct of an employer or supervisor.

After the hearing, the administrative judge found that the employee had experience conducting safety meetings, received fire prevention training, and two months prior to the accident at issue, attended a fire safety refresher course. The fire safety course instructed that water should not be used to extinguish chemical fires, and the fire department should be called. The judge also found that on the day of the accident, the employee knew there was some fuel in a diesel fuel tank he was scraping, but he continued to perform his job because he did not consider it to be especially hazardous. When the fire broke out in the tank, the employee attempted to put it out with a fire extinguisher and then poured water on it, causing the water and flames to splash out and severely burn him.

Pursuant to these findings, the administrative judge concluded that the employer was not responsible for the employee’s injury. Specifically, the judge found that the employee threw water on the tank in contravention of the training provided to him, that the employer was not involved in making the decision to put water on the fire, and that the employee did not ask for assistance from his manager before attempting to put out the fire. Finding no misconduct by the employer, the judge denied the employee’s § 28 claim for additional benefits.

On appeal, the Reviewing Board found that the judge’s findings supported the decision to deny § 28 benefits to the employee. In order to establish § 28 benefits for double compensation, the injury must be caused by reason of the employer’s serious and willful misconduct. In the present case, there was no causal connection or misconduct by the employer. Instead, the accident was caused by the employee’s actions, which were in contradiction to his training. In addition, the Reviewing Board did not find that evidence of safety code violations mandated a finding of serious and willful misconduct. As a result, the Reviewing Board affirmed the administrative judge’s decision to deny § 28 benefits.

If you have been injured in a job-related accident, you may be entitled to payment for your medical treatment and lost wages, regardless of whether you were negligent in causing the accident. The injury attorneys at Pulgini & Norton provide comprehensive legal advice to individuals pursuing workers’ compensation benefits in Massachusetts. To discuss your case with one of our skilled attorneys, contact our office at (781) 843-2200 or online and schedule a consultation.

More Blog Posts:

Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published August 12, 2015

Massachusetts Reviewing Board Affirms Decision Awarding Injured Employee Workers’ Compensation Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published October 13, 2015

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