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Workers’ Compensation Section 28 Liability

Have you been injured at work? Do you believe that your Employer may be at fault for your work injury? Pursuant to M.G.L. c. 152, § 28, if an employee is injured by reason of the serious and willful misconduct of an employer, or of any person regularly entrusted with and exercising the powers of superintendence the amounts of compensation provided shall be doubled. You may be entitled to double your Workers’ Compensation benefits if your employer or supervisor was at fault for your injury.

In Massachusetts, serious and willful misconduct involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences¹” An employer must intentionally do the act, but he also must have reason to know that his actions create an unreasonable risk of bodily harm.

Section 28 generally arises when an Employer or supervisor fails to comply with State mandated, or Federally mandated safety regulations, or when the Employer is aware of a serious risk of injury on the job and fails to take the appropriate measures to correct it, and/or warn of it. For example, in one case, the Massachusetts court found serious and willful misconduct consisted of a crew foreman ordering the employees into a trench without proper shoring precautions, contrary to the instructions of the general foreman, despite the observable conditions at the job site, the readily available shoring material, and the employee’s warnings and requests for shoring². When an Employer knows of potential dangers on a job site, and fails to warn of them or correct them, then the Employer can be held responsible for an Employee’s injury as a result of those conditions under Section 28.

There are various policy reasons for invoking Section 28 under M.G.L. c.152. Specifically, we want to encourage Employers to comply with safe practices and promote industrial safety. We want Employees to know that when they go to work they are not facing serious risks of harm.

So if you have been hurt at work, and your safety was put in jeopardy due to action or inaction by your Employer or supervisor, you may have a claim against your Employer under Section 28.

The attorneys at Keches Law Group, P.C. are experienced in handling all work-related injuries, including those under M.G.L. c.152 § 28. If you or someone you know has been injured at work, contact Keches Law Group for a free consultation by calling 617-898-0808 today.

Courtney M. DaCunha
¹O’Leary’s Case, 367 Mass. 108 (1975).
²Paccia’s Case, 4 Mass. App. Ct. 830 (1976).
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