Section 28 - Willful and Serious Misconduct

The Massachusetts Workers Compensation Statute is a no-fault system of benefits. Injured workers are entitled to Workers Compensation benefits regardless of whose fault an injury was. However, that can sometimes cause employers to ignore unsafe working conditions. Since the employer will never be sued for an injury suffered by a worker, what is the incentive to keep a safe workplace?

As an example, a delivery truck driver relies on the company to maintain the truck and keep it safe. But what if the company decides to not fix its trucks? The company refuses to do periodic maintenance. When told about problems with the brakes, they don’t fix them. Then, after weeks and months of warnings, the brakes fail, and the delivery driver is injured because the company wanted to save money on fleet maintenance.

To fix that, the Workers Compensation Statute includes Section 28 to give extra compensation to workers who are injured due to an employer’s willful misconduct. 

To qualify for Section 28 Benefits, the injured worker must prove that the injury was caused by conduct that was both willful and serious. 

Willful conduct: The injured worker will need to prove that the employer’s conduct was willful. This can be best described as a deliberate violation of the rules, as opposed to negligent or grossly negligent conduct. In other words, it’s something that the employer did intentionally. In the above example with the truck maintenance, a negligent decision would be one where the truck owner thought that the truck was safe, but was mistaken. Intentional conduct is knowing that the truck was unsafe for the road and allowing it to be driven anyway.

Serious Conduct: In order for Section 28 benefits to apply, the conduct has to also be serious. That means that a trivial decision that an employer made isn’t going to trigger benefits. So if the truck’s radio wasn’t working, the decision to delay fixing it is likely not a serious enough willful decision that could lead to Section 28 Benefits.

Section 28 benefits entail doubling whatever compensation an injured worker would have been eligible for. So, if a worker is receiving $600 per week in Section 34 benefits, the Section 28 benefits would be an additional $600.

An added wrinkle is how these benefits get paid. While the Workers Compensation insurance company is directly liable for these payments, the employer is then responsible for reimbursing the insurance company. Since money is coming directly from the employer, it can create problems in settling certain claims, as the employer might not have enough money to pay for the claim.

Section 28 Benefits are also available in certain circumstances where child labor laws are violated and the child is injured. It’s also available if mentally handicapped adults are taken advantage of and put to work against the advice of a medical professional and is injured as a result.

At Marcotte Law Firm, our Lowell Workers Compensation Lawyers successfully pursued Section 28 claims against unscrupulous employers. What would have been preventable accidents caused injuries, and our clients were made to pay the price. Our Lowell Attorneys understand what goes into these claims. When you hire a lawyer from Marcotte Law Firm, you’ll get the results you are looking for.

If you’ve been injured at work, call the Lowell Workers Compensation Attorneys at Marcotte Law Firm for a free consultation.