Not all Workplace Injuries Covered by Workers’ Compensation Insurance

By Maureen James - Skoler Abbott P.C.

January 30, 2024

According to the Commonwealth’s data, in Massachusetts, “on average, 67 workers die as a result of fatal occupational injuries each year.”  Nationally, fatal workplace injuries increased from 2021 to 2022 by 5.7%.  The U.S. Bureau of Labor and Statistics (BLS) saw more than 2.8 million reported work-related injuries and/or illnesses, and 5,486 worker fatalities, in 2022 alone.  The numbers in Massachusetts have been staggering, with 69 reported worker fatalities in 2020, 97 in 2021, and 81 in 2022.  These fatalities include traumatic injuries suffered as work, as well as work-related diseases.  In an analysis of BLS data, the personal injury law firm of John Foy & Associates found that the rate of fatal workplace injuries in-state had increased 107% between 2012 and 2021.

Employer OSHA Liability on the Rise

The Occupational Safety and Health Administration (OSHA) establishes regulations and conducts inspections of employers across the state, issuing fines and ordering compliance if issues are identified.  In December 2023 alone, OSHA has fined employers in Massachusetts almost $900,000 for violations ranging from improperly stored stock materials to a failure to provide a place of employment free from recognized hazards likely to cause death or serious harm.  Most recently, the case of Lorna McMurrey, an employee who died after inhaling ground cannabis dust at a Holyoke cultivation facility, highlighted the complexities of work-related illnesses.  Although traditionally sectors like construction and firefighting have been labeled as the most dangerous with higher numbers of reported fatalities per year, the COVID pandemic highlighted other areas of concern for the health and safety of employees.

“Section 28 Claims” & Individual Liability for Work-Related Injuries

Issues surrounding the strained labor market, supply chain, and inflation have caused employers to struggle to maintain compliance with all health and safety requirements.  Workplace safety should be a paramount concern to protect their employees.  Its importance is also reinforced in the state’s approach to punishing non-compliant employers.  Section 28 of the Massachusetts Workers’ Compensation Law provides “[i]f the employee is injured by reason of the serious and willful misconduct of an employer or of any person regularly entrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled.”  G.L. ch. 152 §28.  Even if the employer maintains insurance coverage for workplace injuries, the employer remains liable for the amount of extra compensation paid under this statute because of the “serious and willful misconduct”.  The takeaway:  The incident does not have to result in death for an employer or employee to be faced with uninsured liability, and that liability can be substantial.

Reduce Your Risk

The goal is to have employers take affirmative steps to reduce the incident rate, and severity, of any injury received in the workplace.  The easiest place for employers to start is a review of their existing safety policies and procedures.  Assessing risks at worksites will vary greatly between industries, but is important that employers evaluate their operation for safety.  The outcome of the assessment may determine that updated training and/or equipment may be necessary.  It is critical that employees are properly trained in safety matters and that supervisors know not to look the other way when safety is being jeopardized – for example, to speed things up or to avoid wearing uncomfortable safety equipment.

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