Decision  Michael Lynch v. Oak Roofing and Sheet Metal Works, Co., Inc.

Date:	07/21/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 028376-07
Location:	Boston

• Employee: Michael Lynch
• Employer: Oak Roofing and Sheet Metal Works, Co., Inc.
• Insurer: Continental Casualty Insurance Company

COSTIGAN, J. The administrative judge found that the employee was injured in a work-related assault by a fellow employee acting in a supervisory capacity, and that such serious and wilful misconduct entitled the employee to payment of double compensation under § 28 of the act.¹ We have the insurer’s appeal,² and affirm the decision.

¹ General Laws c. 152, § 28, provides, in pertinent part:

If the employee is injured by reason of the serious and wilful misconduct of an employer or any person regularly entrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. In case the employer is insured, he shall repay to the insurer the extra compensation paid to the employee. If a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only.

² Although the employer was represented at the evidentiary hearing by its own attorney, at oral argument insurer’s counsel informed the board that the employer was out of business and not involved in the appellate proceedings.