DIA Reviewing Board in Boston rules that returning to work against a doctor’s advice does not satisfy Section 27

The Department of Industrial Accidents Reviewing Board recently held that the standards M.G.L. chapter 152, section 27 were not met, thus affirming the decision of the Administrative Judge.  Click here for a link to the case.

M.G.L. chapter 152, Section 27, pertains to situations involving an injury caused by the “serious and wilful misconduct” of the Employee.  In these situations, if it is determined that the injury was, in fact, caused by the serious and wilful misconduct of the employee, no compensations shall be awarded.  Section 27 is, in many ways, the counterpart to Section 28, which deals with serious and wilful misconduct of the Employer.Stock photo boston 1

Historically, both sections are rarely applied because of the high thresholds in making a determination/ruling that the conduct in question rises to the level of “serious and wilful.”  In many ways, the conduct must rise above mere negligence, or even gross negligence, and must be almost to the level of quasi-criminal in nature.  In other words, the conduct in question usually must be quite severe to be considered “serious and wilful” per these Sections.

In this most recent case, the Administrative Judge, both at conference and hearing, awarded the Employee Section 34 benefits.  After hearing, the Insurer appealed to the Reviewing Board, arguing that the Employee’s serious and wilful misconduct cause his injury and, as a result, his compensation should be barred per the provisions of Section 27.  The facts show that the Employee suffered a number of industrial accidents over the years, with injuries in 1991, 1995, 1996, and 2001.  The Employee returned to work around 2004, as a laborer, going against the advice of several doctors.  Upon his return to work, he was taking methadone and percocet daily to control his pain, and make it through the work day.  He was injured again in April of 2012, for which this present claim was based.

The Insurer’s position was that because he went against the advice of his doctors in returning to work in 2004, this constituted “serious and wilful” misconduct on his part.  They further argued that because he had actual knowledge of his severe and permanent back injury, returning to work as a laborer “created a substantial probability” that he would suffer a further disabling back injury.  Both the Administrative Judge at hearing, and the Reviewing Board rejected this argument.

In their decision, the Reviewing Board notes that “A plain reading of the language requires that the alleged misconduct must be the cause of the injury.”  (Emphasis added).  In this case, the employee was injured when a co-worker dropped a piece of staging onto his back.  It had nothing to do with the Employee’s prior injuries, nor his working for several years against the advice of doctors.  This was an unfortunate accident of being in the wrong place at the wrong time.  “Where the employee’s serious and wilful misconduct at the time of the injury is the crucial element under section 27, an injury that is not proximately caused by his alleged misconduct does not operate to bar the employee’s claim.”

Situations involving both Section 27 and Section 28 are somewhat rare.  However, they do come up on occasion.  Situations like these are very fact specific.  An experienced workers’ compensation attorney is essential in determining the viability of any such claims.

Workers’ compensation cases, in general, can be quite complex. If you are an injured employee with a workers’ compensation matter, having an experienced workers’ compensation attorney, who is knowledgeable in this area of the law, as well as the practices at the Department of Industrial Accidents, is essential in assuring that your rights are protected.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and have over 40 years of experience. Call us any time for a free consultation of your case.


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