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Employee Ordered to Repay Overturned § 28 Payment for Serious and Willful Employer Conduct

In Cleveland v. P. J. Keating Materials Corp., a Massachusetts administrative law judge (“ALJ”) ordered an employer to pay a worker nearly $645,000 in § 28 benefits related to the harm the employee sustained in a 2002 industrial accident. Under the statute, a workers’ compensation claim may be doubled if the employee’s harm results from an employer’s serious and willful misconduct. Following the award, the ALJ denied the employer’s request to stay payment or commit half of the funds to an escrow account pending an appeal. After that, the worker was provided with and apparently spent the full award.

Next, the Department of Industrial Accidents Reviewing Board reversed the ALJ’s § 28 award, and the Massachusetts Appeals Court affirmed the Board’s decision. After further appellate review was denied, the employer sought to recover the money paid to the injured worker under the section. Eventually, another ALJ filed an award for recoupment in favor of the worker’s employer. The employee then appealed her decision to the Board.

On appeal, the employee argued the ALJ committed errors that rendered her decision arbitrary and capricious. First, the worker claimed the ALJ should not have found the employee acted with wanton disregard for the possibility the § 28 benefits award could be overturned when he quickly spent the entire amount despite his purported reasons for doing so. According to the Board, findings regarding credibility are for an ALJ to decide. As a result, the Board dismissed the man’s error claim on this issue.

Next, the Board wholly rejected the worker’s argument that the employer was not required to turn over the entirety of the award to him. After that, the employee claimed the ALJ committed error when she stated he had about $500 in discretionary income per month that could be applied towards repaying the overturned § 28 award. The Board disagreed because the ALJ’s analysis was based on the evidence. The Board then stated the ALJ did not commit error when she said the employer was not precluded from attempting to collect the entire amount of the award, even though actually doing so may not be possible.

After dismissing each of the worker’s error claims, the Department of Industrial Accidents Reviewing Board affirmed the ALJ’s order approving the employer’s recoupment claim.

If you were hurt in an accident at a Boston workplace, you should contact the knowledgeable workers’ compensation attorneys at Kantrovitz & Associates, P.C. Our seasoned lawyers are here to help you recover the benefits you may be entitled to after sustaining a workplace injury. To discuss your rights under the Massachusetts workers’ compensation law in greater detail, give Kantrovitz & Associates, P.C. a call today at 800-367-0871 or contact us through our website.

Additional Resources:

Cleveland v. P. J. Keating Materials Corp., Department of Industrial Accidents Reviewing Board Decision No. 022563-02 (May 18, 2015)

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