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Massachusetts Worker Not Entitled to Benefits, According to Reviewing Board, Due to His Own Misconduct

In a decision assessing whethera judge erroneously denied an employee workers’ compensation benefits, the Massachusetts Department of Industrial Accidents Reviewing Board upheld the order.  According to Massachusetts law, an employee who engages in conduct that is serious and willful misconduct is prevented from recovering benefits under § 27 of the Workers’ Compensation Act.

Additionally, employers that make a bona fide personnel decision under § 1(7A), including terminating an employee, can preclude that employee from receiving compensation. In this case, the Board determined that the facts supported a finding that the employee was not entitled to benefits.

The employee in this case worked as a custodian for public schools within the Town of Milton.  He was involved in a verbal and physical altercation with the Director for Milton Public Schools.  The employer conducted an investigation of the verbal and physical incident and ultimately terminated the employee.

Alleging that he endured severe emotional distress due to the incident, the employee filed a claim for benefits. The workers’ compensation insurer for the employer argued that the employee’s serious and willful misconduct precluded his recovery of benefits under § 27, and his termination also precluded him from benefits, since it was a bona fide personnel action, according to § 1(7A).

At a hearing regarding the employee’s workers’ compensation benefits, the parties had stipulated that the employee had received unemployment benefits following a hearing before the Board of Review of the Division of Unemployment Assistance.  The judge in the workers’ compensation hearing denied the employee’s motion to prevent re-litigating issues that had been determined in that hearing.  The employee argued that on res judicata grounds, the judge should adopt the facts set forth in the hearing before the Massachusetts Division of Unemployment Assistance (DUA).

At the workers’ compensation hearing, the judge heard testimony concerning the employee’s altercation and determined that he had been the aggressor, intentionally attacking the Director of Facilities.  The judge stated that the employee knew or had reason to know that his act would create an unreasonable risk of bodily harm, with a high degree of probability that substantial harm would take place.  This action was outside the scope of custodial employment. In fact, the judge termed it “quasi criminal” conduct.

As a disciplinary response to the fact that a supervisor had been assaulted, the employee was terminated. This, according to the judge, was a bona fide personnel action rather than a personal injury suffered by the employee.  In other words, if there were physical or emotional injuries that the employee suffered, they were not compensable, according to § 27 or § 1(7A).

The employee’s assertion on appeal was that it had been an error for the judge to ignore the evidence set forth in the DUA hearing. He argued that findings set forth in this hearing should not be re-litigated, and issue preclusion (a form of res judicata) should apply to the DUA hearing decision.

While the Board noted that the legal principle of res judicata applies to workers’ compensation proceedings, the employee argued for using issue preclusion offensively to set forth facts made clear in the unemployment hearing decision. The Board stated this is not a proper use of collateral estoppel, and furthermore, the employee had not proven all three elements of issue preclusion.  While he showed a final judgment on the merits, there was no privity of parties between the unemployment and workers’ compensation actions.  The Town of Milton was a party in the unemployment hearing, and the Massachusetts Interlocal Insurance Association was the party in the workers’ compensation case.

Finally, the judge rejected the employee’s argument that the judge should have made different findings, based on the unemployment decision.  The Board stated that they would not disturb the judge’s findings, which were based on evidence in the record.  It was a question of fact as to whether the employee was guilty of serious and willful misconduct, and the judge had applied the appropriate standard to find that the employee’s attack on his superior prevented his eligibility for benefits under the Workers’ Compensation Act.

The decision in favor of the employer was affirmed.

An injured worker’s right to benefits following a workplace injury is subject to challenge by the employer and its insurance company.   At the Law Offices of Attorney Michael O. Smith, workers suffering from an illness, injury, or medical condition caused by work receive experienced legal advice and representation for their claims.  We provide a free consultation with a dedicated Boston workers’ compensation attorney. Call us today at (617) 263-0060.

More Blog Posts:

Discrepancy Between Employee’s Statements and Judge’s Findings Required Recommital of Case, According to Massachusetts Reviewing Board, Boston Workers’ Compensation Attorney Blog, February 21, 2017

Top 10 list of items to consider if you sustained a Workers Compensation Injury, Boston Workers’ Compensation Attorney Blog,  December 7, 2015

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