Using a Willful Misconduct Defense to Deny the Compensability of a Claim

In Maryland, workers' compensation laws are designed to provide benefits to employees who suffer work-related injuries. However, there are circumstances under which an employer can defend against a claim by asserting that the employee's injury resulted from willful misconduct. Successfully prevailing with a willful misconduct defense can be challenging, but understanding the key elements and legal standards involved is essential.

What is Willful Misconduct?

Willful misconduct refers to intentional behavior by an employee that disregards known safety rules or engages in reckless actions. In the context of workers' compensation, it implies that the employee knowingly acted in a way that was likely to result in an accidental injury.

Elements of a Willful Misconduct Defense

To prevail with a willful misconduct defense in Maryland, an employer must demonstrate the following:

1. Intentional Act

• The employer must prove that the employee’s actions were intentional and not merely negligent. This requires showing that the employee knowingly engaged in the conduct that led to the injury.

2. Violation of Safety Rules

• There must be evidence that the employee violated a clearly established safety rule or policy. The rule must have been communicated to the employee, and the employee must have understood the consequences of violating it.

3. Awareness of Risk

• The employer must show that the employee was aware of the risks associated with their actions. This includes demonstrating that the employee knew their behavior could result in injury and chose to proceed regardless.

4. Proximate Cause

• There must be a direct link between the employee’s willful misconduct and the injury sustained.

Gathering Evidence to Support a Willful Misconduct Defense

1. Document Safety Policies and Training

• Employers should ensure that all safety policies are well-documented and that employees receive regular training. A signed acknowledgment of safety policies is crucial to our defense.

2. Enforce Safety Rules Consistently

• Consistent enforcement of safety rules is essential. Employers should document any instances of rule violations and discipline employees, as needed. If the Employer is raising a willful misconduct defense, it is paramount for the Employer to discipline the Claimant for the reckless, intentional act that led to the injury.

3. Gather Evidence

• In the event of an injury, gather all relevant evidence, including witness statements, video footage, and any physical evidence that supports the defense of willful misconduct.

Theory of Willful Misconduct Defense

 While the Maryland Workers’ Compensation Act favors Claimants and does not recognize negligence as a defense to an accidental injury, there is a path to seek a denial under willful misconduct. Counsel should advocate for their clients, arguing that Experience Modification Rates (EMR) are negatively impacted by every injury alleged by an Employer’s employees.

Oftentimes, these elevated EMR’s lead to significant increases in insurance premiums, causing financial hardship to Employers. Additionally, in the construction space, elevated EMR’s can lead to subcontractors being disqualified from bidding on projects.

These are just a few points that can be articulated by defense counsel to support a denial of a claim for accidental injury that could have been prevented if the Claimant did not engage in willful misconduct of known safety policies.

Jason A. Heller