Summary
In Smith we observed that the purpose of § 28 is to encourage employers to engage in safe practices and take reasonable care to ensure that the workplace not operate in reckless disregard of the safety of workers.
Summary of this case from Archer v. Turner Trucking Salvage, NoOpinion
Board No. 07961390
Filed: August 18, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Nancy L. Hall, Esq., for the employee.
James Remeika, Esq., for the insurer.
The employee appeals from the decision of an administrative judge denying her claim for § 28 benefits for the alleged serious and willful misconduct of her employer, contending that the judge erred in assuming that evidence of OSHA violations were of no probative value and insufficient to meet the threshold requirements of § 28. The seminal § 28 cases are O'Leary's Case, 367 Mass. 108 (1975), and Scaia's Case, 320 Mass. 432 (1946). This board recently discussed the standards requisite to a finding of § 28 in Nelson v. Avco Corp., 8 Mass. Workers' Comp. Rep. 392 (1994).
The employee sustained a crush injury to the finger of her right major hand while operating a press machine under the superintendence of Lois Jarbeau at work on November 16, 1990. (Dec. 1, 9.) After treatment for the work injury, the employee returned to work for the same employer. Upon learning that safety nut guards and foot pedal guards, which allegedly would have prevented her injury, were missing from the press machine involved in her injury, she filed a claim for § 28 benefits and a complaint which resulted in an OSHA investigation. (Dec. 3, 8.)
The administrative judge took judicial notice that OSHA had issued a report. (Dec. 8.) It was not produced or introduced as an exhibit. Id. The judge found that Thomas C. Caty, Raytheon safety manager, testified that as a result of the OSHA report that Raytheon determined that eleven machines were lacking safety guards (Dec. 5-6), and Raytheon agreed to permanently affix safety guards to its machine so that no adjustments to the nut guard would be possible without special tools. (Dec. 8.) The employer also agreed to retrain employees charged with responsibility for checking machines to ensure compliance. (Dec. 8.) An abatement of hazard was issued by OSHA. (Dec. 8.)
Though the OSHA report was not admitted into evidence, the reliability of the information was heightened by the fact that a key employer witness attested to its contents and outcome. A statement by the agent or servant of a party, concerning a matter within the scope of his agency or employment, made during the existence of the relationship, may be admitted as a vicarious admission. P.J. Liacos, Massachusetts Evidence 12.9 (3) (6th ed. 1994).
In considering the evidence as to safety violations the judge made the following finding:
Although OSHA apparently issued an abatement complaint for safety violations, this is at most evidence of negligence — not meeting the threshold required by Section 28 of the Act.
(Dec. 10.) (emphasis added)
The judge found there was a safety policy and procedures that were breached. (Dec. 10.) Further, the judge found that the employee had been working on the press for at least an hour and at no time addressed any safety concerns about the machine. (Dec. 5, 10.) He also raised that she never personally knew how her injury happened. (Dec. 10.) These findings raise issues relating to the affirmative defenses of assumption of risk and contributory negligence sounding in tort actions, which will be addressed below.
The employee filed this appeal, contending, among other bases, that the administrative judge failed to give any weight to the existence of OSHA violations because of his misperception that such violations were "at most evidence of negligence." (Dec. 10.) The employee argues that while evidence of OSHA violations does not mandate a § 28 finding, it is probative evidence in a § 28 case.
We agree. Evidence of safety violations, while not dispositive of a § 28 award, can support a finding of serious and willful misconduct. O'Leary's Case, 367 Mass. 108 (1975); Jean Petit v. Westvaco Co., 8 Mass. Workers' Comp. Rep. 185 (1994). See Armstrong's Case, 19 Mass. App. Ct. 147 (1984).
After reviewing all the Supreme Judicial Court and Appeals Court decisions involving § 28, we think that the standard may fairly be summarized as follows. In deciding whether to award double compensation for serious and wilful misconduct under § 28, an administrative judge must first look at the source of the asserted misconduct, which must be:
a. either an employer, or
b. any person;
i. regularly entrusted with the powers of superintendence who;
ii. was exercising superintendence when the injurious misconduct occurred.
Next the administrative judge must analyze the conduct that will support a § 28 finding, which has been compared to other legal concepts throughout the years but amounts to a reckless disregard of safety. The conduct for a § 28 finding is met when an employer or superintending individual:
The Supreme Judicial Court most recently referred to reckless conduct as "constituting the conduct that produces liability for what the court has traditionally called wilful, wanton, or reckless conduct." See Sandler v. Commonwealth, 419 Mass. 334, 335 (1995).
a. does, or fails to do an act that he, or a reasonable person would, know or
b. have reason to know
c. will create an unreasonably high risk of bodily harm that involves
d. a high degree of probability that substantial harm will result.
See Restatement (Second) of Torts § 500 (1965); see also Scaia's Case, 320 Mass. 432, 434 (1946); O'Leary's Case, 367 Mass. 108, 115-116 (1975); Sandler v. Commonwealth, 419 Mass. 334, 337 (1945). The standard for reckless conduct, as set forth in the Restatement of Torts, thus contains either an objective (i.e., what a reasonable person would appreciate) or subjective (i.e., what the defendant himself knew or should have known) element of knowledge of the risk. Id. at 336 n. 2. Thus, there need not be an actual intent to cause harm. See Restatement (Second) of Torts, § 500 comment f (1965).
The exact definition as it appears in the Restatement (Second) of Torts follows.
§ 500. Reckless disregard of safety:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
In Scaia's Case, supra, the court explained that the "serious and wilful misconduct" that serves as the basis of a § 28 award is much more than mere negligence, or even than gross negligence. Id. at 433-434. It involves an intentional act either with the knowledge that it is likely to result in serious injury or with reckless disregard of its probable consequences. Id. See also O'Leary's Case, 367 Mass. at 115-116 and cases there cited.
The demarcation between negligence or gross negligence and wanton and reckless conduct was discussed in Altman v. Aronson, 231 Mass. 588, 591-592 (1919). The court defined negligence and gross negligence and then distinguished them from reckless conduct summarizing: "Ordinary and gross negligence differ in degree of inattention [to a legal duty of care], while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injury." In Commonwealth v. Welansky, 316 Mass. 383, 399 (1944), the court followed the Restatement in teaching that the word "reckless" expresses a "difference in the degree of risk and in the voluntary taking of risk so marked, as compared to negligence, [and gross negligence] as to amount substantially and in the eyes of the law to a difference in kind." See Altman v. Aronson, 231 Mass. at 591-592; accord, Sandler v. Commonwealth, 419 Mass. 334, 337 (1995)
Both tort cases of reckless conduct and criminal cases of involuntary manslaughter apply the same Restatement (Second) of Torts, § 500 (1965) definition of recklessness. See Sandler v. Commonwealth, 419 Mass. at 336 and n. 2. The court in Sandler stated that the "risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant's election to run that risk or of his failure reasonably to recognize it." Id. at 336, citing Scaia's Case, supra at 433-434; Commonwealth v. Welansky, supra at 398-399. Accordingly, whether a case sounds in tort or criminal law, or arises in a workers' compensation context, any difference in the definition of and test for reckless conduct is negligible. See Sandler, supra, at 335.
In summary, to support a finding of reckless conduct or § 28 serious and wilful misconduct there must be a known or reasonably knowable "high degree of likelihood that substantial harm will result to another." Scaia's Case, supra at 434 (quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944)); see O'Leary's Case, supra, at 116; Sandler v. Commonwealth, supra, at 337.
There are additional factors that are evidence entitled to weight but are not essential elements of a § 28 finding. Two come up frequently. First, is the presence or absence of violated safety rules, ordinances, regulations or other safety provisions. See O'Leary, supra, at 117; Armstrong's Case, 19 Mass. App. Ct. 147, 150 (1984). The second is the presence or absence of coercion. See O'Leary, supra, at 115; Armstrong at 150, n. 5. Alone, the presence or absence of either additional factor is not dispositive.
The purpose of § 28 is to encourage employers to engage in safe practices and take reasonable care to ensure that the workplace not operate in reckless disregard of the safety of workers. Hence, inducing employers to comply with safety regulations was part of the rationale for enacting § 28. It would undermine that legislative purpose if evidence of safety violations could not be evidence of serious and wilful misconduct on the part of the employer or his superintendent.
The Report of the Commission for Industrial Accidents, July 1, 1912 was submitted in accordance with Resolves of 1910, c. 120, and Resolves of 1911, cc. 66, 110. In the Commentary to the 1912 Report of the Commission on Compensation for Industrial Accidents, the stated purpose for creating § 28 was to induce the employer to maintain a safe workplace. Id. at 48. "[T]his section will cover the failure by the employer or his superintendent to comply with statutory safety regulations so that it will operate to prevent the breach of such rules." Id.
In the instant case, a finding was made that Lois Jarbeau supervised the employee. She met with and instructed the employee in the operation of the press. Jarbeau also adjusted the press at the employee's request. (Dec. 4.) The finding of superintendence having been made, the judge considered the actions of the superintendent and found them only negligent. Negligence does not rise to the level of serious and wilful misconduct under § 28.
Although the employee argues that the judge erred when he stated that he considered the evidence of an OSHA violation to be insufficient to meet the threshold for § 28, there is no reversible error because it appears he weighed the other factual allegations of misconduct including the breach of a safety policy and procedures. The judge critiqued the strength of the other evidence submitted when he stated that the safety breaches were "open to speculation," and the testimony was vague as to the OSHA findings. (Dec. 8, 10.) In rendering a § 28 ruling the legal conclusion must be based on the totality of factual circumstances on the evidence presented. The judge considered the totality here, and found it wanting. In affirming the judge on these facts, we acknowledge that on other facts, where safety breaches are more clearly established, and combine with other factors, an administrative judge could award § 28. We merely state that on the case as advanced the judge's ruling is supportable.
Consistent with our objective of clarifying the § 28 standard, we comment on two additional points. The administrative judge found that the employee failed to make safety complaints (Dec. 5, 10), and that she did not know how her injury happened. (Dec. 10.) Common law affirmative defenses such as an employee's "assumption of risk" or "contributory negligence" have no place in the workers' compensation act, and no role in a § 28 analysis. See Report of the Commission for Industrial Accidents, Boston, July 1, 1912, pp. 46-47. Such tort doctrines were recognized to "not reasonably nor logically appl[y] to existing conditions of employment." Id. at 47. There is no requirement that an employee complain about safety concerns in order for a § 28 finding to be made. Nor is there any requirement that an employee know the mechanism of injury in order to recover under the Act, or under § 28. In light of the entire consideration the judge gave to the case presented, and because we cannot be sure he deemed these factors affirmative defenses, on these facts we view the findings in this regard as harmless error. Decision affirmed.
So ordered.
Judges McCarthy and Wilson concur.