The injured employee in the case of James McDonald v. Brand Energy Services, Inc. was a union laborer who had worked and been injured at work several times dating back to 1991. In fact, the employee had injured his back four separate times prior to this particular work injury. With each of the four prior work-related back injuries, the employee received lump sum settlements. His last injury in which he received a lump sum settlement came in the year 2001. Approximately three years after his last work related injury he returned to work against the advice of several doctors in 2004. While employed he did not complete heavy-duty tasks but he did cope with daily pain by taking pain medication while completing lighter assignments.
In 2012, the employee was injured again when a co-worker dropped a piece of staging on his back while they were loading a truck together. Since the injury the employee did not return to work. The claim was brought in front of an Administrative Judge who awarded the employee Section 34 temporary total incapacity benefits. The insurer appealed to the DIA Review Board claiming under Section 27 the employee was barred from receiving compensation due to his own “serious and willful misconduct”. The insurer rested its argument on the fact that the employee returned to work in 2004 against the advice of several doctors. Furthermore, the insurer argued the employee created the substantial possibility that he would sustain a disabling injury because he was aware of his severe back injury prior to returning to work. However, the Reviewing Board affirmed the Administrative Judge’s decision and rejected the insurer’s Section 27 based argument.
Both the Administrative Judge and the Reviewing Board found that the employee did not misrepresent his injury because upon his return to work he advised his employer that he could not complete heavy-duty tasks. Furthermore, this injury was caused by a co-worker and was not caused by any fault of the employee. The Reviewing Board made mention that a plain reading of Section 27 clarifies that the alleged misconduct of the injured employee must be the cause of the injury. Although the employee’s decision to return to work went against his doctors’ advice his prior back injuries were not the cause of the injury. In order for a claim to be barred by Section 27 the employee’s misconduct has to be the actual and proximate cause of his injury. The employee was awarded Section 34 benefits, which allows an employee to receive 60% of his or her average weekly wage for up to 156 weeks while totally disabled from work.
This case demonstrates that in order for an employee’s claim to be barred under Section 27 “serious and willful” must be more than mere negligence or possibly even more than gross negligence and may have to be along the lines of quasi-criminal. It also shows that an insurer may use the fact that you returned to work in opposition of professional advice against you, if you subsequently bring a workers compensation claim. Often times workers compensation claims can be complex and it is in your best interest to hire an experienced Massachusetts workers’ compensation attorney who is knowledgeable in this area of the law. For further information please call our Massachusetts’ workers’ compensation attorneys at Carney Law Firm for a free consultation.