CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

E- mail: cbpc@ix.netcom.com

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Attorney Steven Bloom is available to represent clients with Worker's Compensation cases in the Commonwealth of Massachusetts. 

The exclusivity clause of the  Massachusetts workers' compensation act, G.L. c.152, s.24, provides that "[a]n employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. . . ."  In the absence of such written notice, G.L. c. 152, s.26, bars common law actions against employers where (1) the plaintiff is shown to be an employee; (2) her condition is shown to be a personal injury within the meaning of the workers' compensation act; and (3) the injury is shown to have arisen out of and in the course of her employment. 

In determining whether such personal injury claims against the employer are only compensable under the worker's compensation act, it is without consequence that the co-employee causing the injury may not have been acting in the course of his own employment or furthering their mutual employer's interest.  The purpose of the workers' compensation act is to ensure that employees who give up their common law rights to sue their employers will not be without recourse, but will have a mechanism to be reimbursed for their employment-related injuries regardless of fault or foreseeability. The workers' compensation act provides to employees who are injured on the job the exclusive remedy against their employers who, by paying workers' compensation insurance premiums, are protected from civil suits.  It also provides the exclusive remedy against co-employees who engage in tortuous conduct within the course of their employment and in furtherance of the employer's interest. Co-employees themselves, however, are not immunized from suit by the workers' compensation act for tortuous acts which they commit outside the scope of their employment, which are unrelated to the interest of the employer.

For example, in Massachusetts the courts have held that where a supervisor engaged in a series of unwanted sexual advances and other objectionable actions of a sexual nature against his assistant, these tortious acts which the jury found the supervisor committed (assault and battery and intentional infliction of emotional distress) were not even remotely related to the employer's interests, and the employee was entitled to sue outside of the worker's compensation law.  In order to state a claim for intentional infliction of emotional distress, the employee must allege that (1) the co-employee "intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct"; (2) the co-employee's "conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community"; (3) the co-employee's actions were the cause of the employee's distress; and (4) the emotional distress suffered by the employee was severe and of a nature that no reasonable person could he expected to endure it.

The recent case of Fredette v. Simpson involved an employee who was seriously injured when a backhoe truck tire exploded and a piece of the metal rim struck him in the forehead.  At the time, the employee was changing the tire on the backhoe to prepare the truck for use in removing railroad ties on the employer’s property.  The injured employee sued his supervisor, individually, for allegedly failing to adequately train and supervise the employee and for other reasons based on the alleged negligence of the supervisor.  The Massachusetts Supreme Judicial Court held that a co-employee is not liable for the torts he commits against his fellow co-employee so long as his negligent actions were within the course of employment.  Co-employees may be sued however for their actions which are outside the course of employment and for reasons unrelated to the interest of the employer. An objective test is used to determine whether the actions of an employee are within the course of employment or at least in part for a job related purpose.  The course of employment test is much broader than a scope of employment test which is used to determine if a master is liable for his servant’s negligent acts.  An employee has acted within the course of employment whenever he is on his employer’s premises and he has engaged in conduct consistent with his contract for hire and pertinent or incidental to his employment.  An employee has acted within the course of employment if he undertakes an act for more than one purpose but at least one of the purposes is consistent with his employment.  The employee must have acted in some way related to his employment in order to not be liable.  The relevant time frame in which to examine the relationship of the parties is the time of the accident.  In the case at bar, the employee and his supervisor were using equipment owned by the employer for the benefit of the employer.  On the day of the accident, the supervisor and the injured employee were co-employees.  When the supervisor  instructed the employee to change the truck tire, he was obeying orders from the employer.  Thus, he was also acting to further the purposes of the employer---and was therefore acting in the course of employment--- therefore, the supervisor is not liable for the injuries sustained by the employee. 

There are valuable benefits available to injured workers in Massachusetts. Worker's Compensation law can be complicated and confusing.  If you have been injured in the course of your employment in Massachusetts and want to be sure that you receive the benefits which are due you, you may need an experienced attorney to represent you.

Attorney Steven Bloom is available to represent clients with Worker's Compensation cases in the Commonwealth of Massachusetts.