The Connection Magazine The Connection Magazine Fall 2017 | Page 30

RISKS OF SECTION 28
THE HIDDEN
RISKS OF
SECTION 28:
WHAT MASSACHUSETTS
EMPLOYERS NEED TO KNOW
By: Buzz Schneider, ESQ.
AS an attorney, I find employers often
assume their workers’ compensation
insurance policy insulates their business
from the financial responsibility of
a catastrophic industrial injury to an
employee.
That’s true, most of the time. One
exception is Section 28 Willful Misconduct
of an Employer.
Consider the case of a mason seriously
injured on a construction site whose
claim was prosecuted under Section 28.
Prior to the accident, union officials told
the employer that falling debris from
the building caused a safety hazard. The
employer had ordered safety nets but still
directed employees to continue working
in the unsafe condition. The Court found
that ordering employees to work without
the safety nets showed a “disregard
for the probable consequences” of its
actions, a violation of Section 28 (David T.
Armstrong’s Case, 19 Mass. App. Ct. 1947
(1984)).
The Employer’s Responsibility
Massachusetts, like many states,
provides
a
statutory
workers’
compensation system. The system allows
for employees to receive disability and
medical payments if they sustain an injury
that arises “out of and in the course of
employment.” Generally, it’s a “no fault”
system, meaning
• the employee is not required to
prove employer negligence in order
to receive benefits; and
• as an employer, you are statutorily
immune from negligence claims
prosecuted by an employee if
the injury arises out of and in the
course of employment (unless the
employee provided written notice
preserving this right at the time of
contract/hire 1 ).
Claims prosecuted under §28 Willful
Misconduct of an Employer, however,
are an exception. If the Court finds an
employer’s conduct rises to the level of
“serious and willful,” all benefits under
Massachusetts General Laws Chapter 152
are doubled. That includes medical and
indemnity payments.
Moreover, the ultimate financial
responsibility of a §28 finding belongs
to the employer. Initially, the insurer is
responsible for those payments to the
injured worker, or to the surviving spouse
in the case of death. But the statutory
30
30
provision allows the insurer to then
subrogate against the employer for the
§28 benefit.
Employers often ask why they should be
“punished” in this way.
Actually, the courts have indicated that
was never the statute’s intent. Rather, §28
was designed to recognize that an injured
employee is unable to bring a claim for pain,
suffering, loss of enjoyment of life, and
related tort damages against an employer
in this scenario (CNA Insurance Companies
v. James Sliski, 433 Mass. 491 (2001)). In
essence, §28 was a statutory provision
drafted based on equitable principles.
What is “Serious and Willful”
Misconduct?
Examples of §28 findings over the years
often involve catastrophic injury or death
to workers when the employer has direct
knowledge of a dangerous condition. 2
These employers had put employees in
harm’s way despite knowing the high risk
of danger.
That was the scenario in a §28 case
involving an employee using a jackhammer
on a street surface. The activity was
allowed to continue even though the
employer knew or should have known that