Section 28 Double Benefits - Employers Willful Misconduct
In the Commonwealth of Massachusetts, an employee who is injured on the job is entitled to receive workers’ compensation benefits without a requirement of showing employer was negligent in causing the injury or work-related illness. This is in one of the advantages an injured worker has under the workers’ compensation system over a traditional negligence civil lawsuit.
However, Section 28 of Chapter 152 if the Massachusetts General Laws, allows for an injured employee to recover double benefits in situations involving employer willful misconduct. Section 28 provides that if an employee is injured because of serious and willful misconduct of his or her employer or by his or her regular supervisor hired by employer, the injured employee is entitled to double recovery.
Under the statute, if the employer is covered by workers’ compensation insurance, the employer is required to repay the insurance provider for any additional compensation paid to the injured employee.
One typical example of a workers’ compensation action involving serious willful misconduct involves cases of knowingly failing to follow machine guarding protocols. In many workplaces, employees are required to work on or around moving machinery. If there is an accident, it is often discovered the accident could have been avoided if a proper guard was in place. In some cases, an employer learns of the cost of putting in a proper machine guard, he or she decides that it is too expensive and takes a risk that another worker will not be injured in the same preventable manner. When the second injury occurs, it can be classified as being caused by serious willful misconduct on behalf of employer.
As the experienced workers’ compensation attorneys at the Law Offices of Jeffery S. Glassman, LLC can explain, a claim must be made under this specific section in order to receive double benefits. The employer may appear at a hearing and defend against the claim, but only with respect to the willful misconduct portion.
The statute also provides that an employer who knowingly hires a worker who is known by employer to be a minor and that minor employee is injured, the accident is deemed by law to involve serious willful misconduct on behalf of employer.
The Massachusetts workers’ compensation law also broadly defines the term minor to include a mentally disabled worker over the age of 18 unless the employment takes place in a “sheltered workshop” that is licensed by Department of Developmental Services or other accreditation agency, and employer has a professional vocational specialist evaluate the employee on the job site who certifies that the employment arrangement is appropriate and employee has agreed to agree to a written work plan.
The Division of Administration of the Massachusetts Department of Industrial Accidents is responsible for keeping records of any accidents at sheltered workshops. If there is a pattern of on-the-job accidents at a sheltered workplace, the division can take whatever action it deems necessary.
It is important to keep in mind that double recovery for serious willful misconduct on behalf on an employer is an exception to the norm and can involve a complex process for obtaining approval. The best thing an injured employee can do maximize chances of obtaining a full and appropriate recovery is contact a workers’ compensation attorney in Massachusetts who regularly handles these types of matters and is familiar with the complexities of the system.
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