## Facts

- Michael Lynch worked as a journeyman roofer for Oak Roofing and Sheet Metal Works Co., Inc.
- In September 2007, Oak assigned Lynch to a roofing project at Massachusetts General Hospital (MGH).
- Lynch was told to report to Matthew Macomber, another journeyman roofer working at the MGH site.
- Months earlier, Macomber had begun at the MGH job under a foreman who was later transferred away from the site.
- Oak did not officially designate Macomber as foreman, did not pay him a foreman rate, and did not give him hiring or firing authority.
- Even without the formal title, Macomber performed day-to-day supervisory functions at MGH, including:
  - setting the daily work schedule,
  - assigning tasks to Lynch and another worker at the site, and
  - using a company-issued cell phone to call in employees’ hours for payroll and to contact Oak as needed.
- The MGH project involved opening a roof to allow installation of ductwork and then reinstalling flashing to reseal the roof after other trades finished their work.
- On September 24, 2007, Lynch and another worker arrived late; Macomber contacted the employer to complain and asked that a different worker be assigned to the project.
- Later that day, while the workers were on the roof performing reflashing and resealing work, Macomber became dissatisfied with Lynch’s performance, cursed at him, and then charged at him and bumped him into a steel beam.
- Lynch was injured and sought workers’ compensation benefits, including double compensation under Mass. Gen. Laws ch. 152, § 28, claiming the injury resulted from the serious and wilful misconduct of a person exercising superintendence powers.
- Oak’s insurer, Continental Casualty Insurance Co., refused to pay the claim; Lynch filed a formal claim.
- An administrative judge found the injury compensable, found Macomber was “regularly entrusted with and exercising the powers of superintendence,” and awarded § 28 double compensation; the insurer appealed to the Reviewing Board.

## Issues

1. Whether Macomber qualified as a person “regularly entrusted with and exercising the powers of superintendence” under Mass. Gen. Laws ch. 152, § 28, even though he lacked a foreman title, foreman pay, and hiring/firing authority.
2. Whether Macomber’s intentional, physical assault on Lynch constituted “serious and wilful misconduct” under § 28.
3. Whether the administrative judge’s findings were supported by substantial evidence and free from legal error such that the award had to be affirmed on appeal.

## Decision

- The Reviewing Board affirmed the administrative judge’s decision.
- The Board upheld the finding that Macomber functioned as a de facto supervisor at the MGH job site and therefore fell within § 28 as a person exercising superintendence powers.
- The Board upheld the determination that Macomber’s deliberate assault, in the circumstances of the work being performed, amounted to serious and wilful misconduct.
- The Board rejected the insurer’s challenges because the judge’s findings were supported by the record and the correct § 28 standards were applied.

## Legal Principles

- Under Mass. Gen. Laws ch. 152, § 28, compensation is doubled when an employee is injured due to the “serious and wilful misconduct” of the employer or any person “regularly entrusted with and exercising the powers of superintendence.”
- “Powers of superintendence” are assessed by what authority the employer actually places in a worker’s hands and what the worker actually does on the job (such as setting schedules, assigning tasks, and serving as the on-site contact), not solely by job title, wage rate, or hiring/firing authority.
- An intentional workplace assault can satisfy the “serious and wilful misconduct” requirement when it is deliberate and occurs in conditions where the likelihood of significant injury would be obvious to the actor.
- On Reviewing Board appeal, an administrative judge’s fact findings and credibility determinations are not re-tried; the decision is affirmed if supported by substantial evidence and based on the proper legal framework.

## Conclusion

The Reviewing Board affirmed a § 28 double-compensation award because the evidence supported that Oak had regularly placed Macomber in charge of key on-site supervisory functions at MGH, and his deliberate assault on Lynch was serious and wilful misconduct within the meaning of the statute.


Michael Lynch, Employee, Oak Roofing and Sheet Metal Works Co., Inc., Employer, Continental Casualty Insurance Co., Insurer, 25 Mass. Workers’ Comp. Rep. 249 (2011)