Can You Get Workers Comp If the Accident Was Your Fault in Massachusetts?

Yes, in nearly every case. Massachusetts workers compensation does not ask who caused the injury. M.G.L. c. 152, sec. 26 conditions benefits on one thing, that an employee “receives a personal injury arising out of and in the course of his employment,” and the section says nothing at all about fault. You can cause your own injury through ordinary carelessness, inattention, haste, or by ignoring a rule you knew about, and the claim is still payable. The chapter contains one fault based bar and it is a narrow one. M.G.L. c. 152, sec. 27 provides that “If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation; but this provision shall not bar compensation to his dependents if the injury results in death.” Serious and wilful misconduct is a much higher standard than being at fault, which is why the honest answer to the question in the title is almost always yes. To talk through a Massachusetts work injury, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge.

What Section 26 Actually Asks

Read sec. 26 looking for the word fault and you will not find it. The section asks three questions, and only three.

Were you an employee. Did the injury arise out of your employment. Did it happen in the course of that employment.

Those are questions about the connection between the work and the injury, not about the quality of anyone’s driving, lifting or judgment. A roofer who misjudges a step, a nurse who hurts her back because she moved a patient alone instead of waiting for help, a driver who rear ends someone on a delivery run, a warehouse worker who reached into a machine he had been told to leave alone: all four caused their own injuries, and all four are describing injuries that arose out of and in the course of employment.

Section 26 also settles some arguments before they start. A person using a vehicle with the employer’s general authorization in the performance of work “shall be conclusively presumed to be an employee.” Injuries from frost bite, heat exhaustion or sunstroke are conclusively presumed to have arisen out of the employment, so long as the employee did not voluntarily assume an increased peril not contemplated by the contract of employment. So is an injury caused “by reason of the physical activities of fellow employees in which he does not participate,” which is the provision that decides a large share of horseplay cases.

What the section does not resolve is where the boundary of the working day sits. That is a different fight, and this site covers it separately in the going and coming rule, which is about the commute and the exceptions to it.

The Trade That Makes the No-Fault Rule Work

The reason fault drops out of the analysis is that the whole chapter is a trade, and the other half of it is written down in M.G.L. c. 152, sec. 24. An employee is “held to have waived his right of action at common law” against the employer for a compensable injury unless the employee gave the employer written notice preserving that right at the time of hire. Almost nobody does that, and most people have never heard of it.

So the bargain runs like this. You give up the right to sue your employer and to argue that the employer was careless. In exchange you get benefits that do not depend on proving anyone was careless, including you. M.G.L. c. 152, sec. 25A requires every employer to fund that promise, by insurance or by a licensed self insurance arrangement. Who counts as an employer for that rule, the narrow exceptions, and what an injured worker can do when the employer never bought the policy are covered in whether workers comp is required in Massachusetts.

A system that paid only blameless workers would collapse the trade, because most workplace injuries involve a human being doing something slightly wrong in a place that punishes it. The statute took fault off the table for both sides at once.

How Different This Is From a Claim Against a Driver or a Property Owner

The contrast is worth spelling out, because people arrive at this question having heard about the other kind of case from a friend or a television advertisement.

In an ordinary Massachusetts injury claim, your own share of the fault matters twice. It can reduce what you recover, in proportion to your share, and if your share is greater than the share of the people you are suing it bars the claim entirely. That is the comparative negligence rule, set out in this article on partial fault.

In a workers compensation claim there is no equivalent. There is no percentage. An insurer cannot pay 70 percent of your medical treatment because it thinks you were 30 percent responsible for the ladder falling. The weekly benefit rates in sections 34 and 35 are fixed proportions of your average weekly wage, and nothing in either section allows a reduction for the employee’s carelessness.

Answer Capsule

Massachusetts workers compensation pays regardless of who caused the injury. M.G.L. c. 152, sec. 26 requires only that an employee receive “a personal injury arising out of and in the course of his employment,” and neither that section nor the benefit sections mention fault or allow a benefit to be reduced because the employee was careless. The single fault based bar is M.G.L. c. 152, sec. 27, which denies compensation to an employee “injured by reason of his serious and wilful misconduct” while expressly preserving compensation for dependents where the injury results in death. Serious and wilful misconduct means far more than negligence or a broken safety rule, and it is the insurer’s point to prove. The mirror provision, M.G.L. c. 152, sec. 28, doubles the compensation where the injury results from serious and wilful misconduct by the employer or a person exercising the powers of superintendence. Two exclusions do turn on what the employee was doing: M.G.L. c. 152, sec. 1(7A) excludes injuries from “purely voluntary participation in any recreational activity,” and sec. 26 covers an employee hurt by the physical activities of fellow employees only where the employee “does not participate” in them. Far more claims are denied over a pre-existing condition, because under sec. 1(7A) a work injury that combines with a non-work condition is compensable only while the work injury remains “a major but not necessarily predominant cause” of the disability or the need for treatment. The practical risks to a claim are late notice under sec. 41 and refusing the insurer’s medical examination under sec. 45, not carelessness. Call Jim Glaser Law at (617) JIM-WINS. The first telephone consultation is offered without charge.

The Real Exception: Serious and Wilful Misconduct

Section 27 is one sentence long, and it is the provision an insurer has to reach if it wants to deny a claim because of what the injured worker did. Two things about it matter more than anything else on this page.

The first is how far above ordinary fault the standard sits. Chapter 152 does not define the phrase anywhere in section 27, and the words it does use are doing the work: misconduct that is both serious and wilful is being distinguished from the ordinary kind. That is a description of a choice rather than of a mistake. Ignoring a guard on a saw because the job was running late is a rule violation. Ignoring it because a supervisor’s instruction seemed excessive is a rule violation. Neither is the same thing as deciding to run a known and serious risk of injury, and the distance between those two descriptions is the whole argument.

The second is who has to prove it. Section 27 is a defence raised by the insurer against a claim that otherwise satisfies section 26. It is not a box the employee has to tick to qualify. In practice this matters at the moment an adjuster or a supervisor says the injury was your own fault so there is nothing to claim. That sentence describes no test found in the statute.

Note also what section 27 preserves. Even where the misconduct bar applies, it “shall not bar compensation to his dependents if the injury results in death.” The family’s claim survives the worker’s own conduct.

The Mirror Provision, Which Runs the Other Way

The same standard exists for the employer, and it is worth knowing about because it changes what a claim is worth rather than whether it exists. Under M.G.L. c. 152, sec. 28, if the employee is injured “by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence,” the amounts of compensation “shall be doubled.” Where the employer is insured, the employer repays the insurer the extra compensation, so the doubling lands on the business rather than on the policy.

Section 28 also makes one thing serious and wilful misconduct by definition. Employing a minor, known to be such, in violation of the child labor provisions of chapter 149 “shall constitute serious and wilful misconduct under this section.”

Horseplay, Fights and the Company Picnic

Three situations come up often enough to name, and the statute answers all three without any reference to fault.

Injuries caused by co-workers. Section 26 conclusively presumes that an injury caused “by reason of the physical activities of fellow employees in which he does not participate” arose out of the employment, “whether or not such activities are associated with the employment.” The employee who was standing there when someone else started a scuffle or threw something is covered, and the presumption is conclusive rather than a starting point. The employee who joined in is outside the presumption, and then the ordinary sec. 26 analysis applies with a possible sec. 27 defence behind it.

Recreational activity. Section 1(7A) is explicit that personal injury “shall not include any injury resulting from an employee’s purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.” The employer paying for the event does not bring the injury back in. The operative word is voluntary, which is why attendance being expected, or the activity being part of the job, is the thing worth documenting at the time.

Stress and personnel decisions. Mental or emotional disabilities are compensable “only where the predominant contributing cause of such disability is an event or series of events occurring within any employment,” and section 1(7A) excludes a mental or emotional disability arising principally out of a bona fide personnel action such as a transfer, promotion, demotion or termination, unless the action was the intentional infliction of emotional harm. If you were let go while on a claim, the separate question of retaliation is covered in being fired while on workers comp.

The Denial You Are Far More Likely to Meet

Most denied Massachusetts claims are not denied over fault. They are denied over causation, and the sentence that does it is also in section 1(7A).

“If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.”

Read that carefully, because both halves matter. The work injury does not have to be the biggest cause. It has to be a major one, and it has to remain one. That is the provision behind the denial letter that says degenerative changes on the imaging are the real cause of the back pain, and behind the letter that accepts a claim and then cuts it off months later on the basis that the work injury has resolved and the underlying condition is what is left. It has nothing to do with who caused the accident.

Section 7A helps in the hardest cases. Where the employee was killed or found dead at the place of employment, or is physically or mentally unable to testify and that incapacity is causally related to the injury, it is prima facie evidence that the employee was performing regular duties, that the claim comes within the chapter, that sufficient notice was given, and that the injury or death “was not occasioned by the willful intention of the employee to injure or kill himself or another.”

What Coverage Actually Pays

If the claim is accepted, four sections do most of the work, and none of them contains an adjustment for the employee’s share of the blame.

Medical treatment, section 30. The insurer “shall furnish to an injured employee adequate and reasonable health care services, and medicines if needed,” with no deductible and no co-payment. Except for a first scheduled appointment under a preferred provider arrangement, the employee may select a treating health care professional other than one the insurer provides, and may switch once, with a further change allowed within a specialty on referral. The detail is in does workers comp cover medical bills.

Total incapacity, section 34. Sixty percent of the average weekly wage before the injury, subject to the state maximum and minimum rates, for not more than 156 weeks.

Partial incapacity, section 35. Sixty percent of the difference between the pre-injury average weekly wage and what the employee is capable of earning afterward, capped at 75 percent of the section 34 rate, for not more than 260 weeks in the ordinary case. How long benefits can run in total is covered in how long does workers comp last.

The waiting rules, section 29. Nothing is paid under sections 34 or 35 unless the injury keeps the employee from earning full wages for five or more calendar days. If incapacity reaches 21 days, payment runs from the first day of incapacity. Between five and 21 days it runs from the sixth.

Section 36 pays separate specific amounts for permanent loss of function and disfigurement on top of the weekly benefits, which is part of why two claims with identical wage figures settle at different numbers. That is set out in settlement value by injury, and what a lawyer may charge is fixed by statute rather than negotiated, as explained in workers comp attorney fees.

What Can Actually Cost You Benefits

Since fault will not, it is worth knowing what will.

Silence. Section 41 requires notice to the insurer or the insured “as soon as practicable after the happening” of the injury, and requires any claim to be filed within four years from the date the employee first became aware of the causal relationship between the disability and the employment. Section 44 softens the notice half considerably: want of notice does not bar proceedings where the insurer, insured or agent had knowledge of the injury, or where the insurer was not prejudiced by the delay. An inaccuracy in stating the time, place or cause does not invalidate a notice unless it was intended to mislead and the insurer was in fact misled. The four year claim deadline is not soft in the same way, and it is a different clock from the three year deadline in an ordinary injury case, which is covered in the statute of limitations article.

Refusing the examination. Section 45 lets the insurer or the insured request an examination by a registered physician, furnished and paid for by them, from time to time during the disability. You may have your own physician present, at your own expense. If the employee “refuses to submit to the examination or in any way obstructs it,” the right to compensation is suspended. That is a self inflicted wound with no upside.

Inconsistency. A claim is decided on records: the first report of injury, the emergency department note, the supervisor’s account, the treating notes. The description of how the injury happened does not have to be flattering and it does not have to be blameless. It does have to be the same story every time. People damage claims by shading the account toward something that sounds less careless, then contradicting it under oath. The statute already forgave the carelessness. It does not forgive the inconsistency.

If Someone Other Than Your Employer Caused It

Fault does come back into the picture in one situation, and it is the situation that makes a work injury worth a second look rather than less.

Under M.G.L. c. 152, sec. 15, where the injury was caused “under circumstances creating a legal liability in some person other than the insured to pay damages,” the employee is entitled “without election” to compensation under the chapter and may also pursue that third person. A delivery driver hit by a stranger, a tradesman hurt by another contractor’s crew, a worker injured by defective equipment made by someone else: each has a comp claim that ignores fault and a separate claim that runs on it. Section 15 then divides the recovery, with the insurer repaid out of the proceeds and the excess going to the employee. Construction sites generate most of these, and construction site injury claims covers how the two tracks run together.

Frequently Asked Questions

Q: Does Massachusetts workers comp pay if the accident was entirely my fault?

A: In nearly every case, yes. M.G.L. c. 152, sec. 26 conditions benefits on a personal injury “arising out of and in the course of” employment and does not mention fault, and no benefit section allows a reduction for the employee’s share of the blame. The only fault based bar is sec. 27, which requires serious and wilful misconduct, a considerably higher standard than carelessness.

Q: What counts as serious and wilful misconduct in Massachusetts?

A: Chapter 152 does not define the phrase, which is why the argument is usually about the words themselves. Misconduct that is serious and wilful is being set apart from the everyday kind, so a mistake, a lapse of attention or a broken rule is not automatically enough. Because section 27 is a defence to an otherwise valid claim, the insurer is the party that has to raise and support it. Whether particular conduct meets the standard depends on facts that no general article can supply.

Q: Can my employer deny my claim by saying I broke a safety rule?

A: Saying it is not the same as establishing it. A safety rule violation is often ordinary negligence, which section 26 does not exclude. It is evidence that may be offered in support of a sec. 27 defence, and whether it gets there depends on what the employee knew and chose, not on the existence of the rule. Employers do not decide claims in any event; the insurer accepts or denies, and a denial is contested before the Department of Industrial Accidents.

Q: What if I was hurt playing on a company softball team or at the holiday party?

A: M.G.L. c. 152, sec. 1(7A) excludes injuries from “purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.” The question that decides these claims is whether participation was truly voluntary. Attendance that was required, expected as part of the job, or connected to a work duty is the fact worth recording at the time it happens.

Q: What if a co-worker’s horseplay injured me?

A: Section 26 conclusively presumes that an injury “by reason of the physical activities of fellow employees in which he does not participate” arose out of the employment, whether or not those activities had anything to do with the work. The presumption protects the bystander. An employee who joined in falls outside it and is analysed under the ordinary rules, with a possible sec. 27 defence.

Q: Does my pre-existing back condition mean my claim gets denied?

A: Not automatically, and this is the more common fight. Under sec. 1(7A) a compensable injury that combines with a non-compensable pre-existing condition is compensable only while the work injury “remains a major but not necessarily predominant cause of disability or need for treatment.” The work injury does not have to be the largest cause. It does have to be a major one, and it has to still be one, which is why these claims are often accepted and later contested.

Q: My employer says I was at fault so there is no claim. Is that right?

A: That is not the test the statute sets, and an employer does not decide the question. Benefits are paid by the insurer or self insurer required by sec. 25A, a denial is appealable, and the only fault based bar is the serious and wilful misconduct provision in sec. 27. Report the injury in writing anyway, since sec. 41 requires notice as soon as practicable and sec. 44 gives less protection to a claim where the insurer had no knowledge of the injury at all.

Q: Can I sue my employer instead if the accident really was their fault?

A: Usually not. Under M.G.L. c. 152, sec. 24 an employee is held to have waived the common law right of action against the employer for a compensable injury unless written notice preserving it was given at the time of hire. Where the employer’s own serious and wilful misconduct caused the injury, sec. 28 doubles the compensation instead. A claim against someone other than the employer is a separate matter, governed by sec. 15.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney client relationship. Whether any of it applies to a particular injury depends on facts that are not in this article, including the medical record and the employment relationship. For advice about your own situation, speak with a Massachusetts attorney.

Talking to a Lawyer

The belief that a work injury you caused is not claimable keeps people from reporting injuries at all, and the reporting is the part that is hard to fix later. Section 41 wants notice as soon as practicable. The emergency department note written on the day is worth more than any account given six weeks afterward.

If the injury has already been reported and the claim has been denied, the denial letter itself is the useful document, because it states the ground. A denial resting on serious and wilful misconduct is a different problem from one resting on the major cause rule in section 1(7A), and they are answered with different evidence.

Jim Glaser Law can be reached at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge.