Section 34, Chapter 152: Total Incapacity Compensation

When you are injured on the job in Boston, you may require medical attention and often times will not be able to immediately return to work. In such a situation, you may need to file a claim for workers’ compensation benefits. Massachusetts General Laws Chapter 152, Section 34 lays out the criteria and process for claims pertaining to temporary total disability compensation benefits.

The first thing you must do is make sure you report an injury to your employer. In some cases, an employee will think the injury is minor, and it’s not worth reporting the injury. This is not the best thing to do, for a couple of reasons.

Your Boston workplace injury may actually end up being a lot worse than you originally thought. You may think that if you put ice on it at home or take a bunch of ibuprofen the pain will go away in a day or two. However, often times that is not enough and you may have an injury that gets worse over time. Frequently, an injury becomes so bad that medical treatment is required, which may lead to surgery and an extended period of time missed from work.

At this point, opening a workers’ compensation case will be in your best interests in order to collect lost wages and ensure your medical treatment is covered. However if you never reported the workplace injury when it happened, your employer will not have any record of you being injured on the job. This will likely cause your employer’s workers’ compensation insurance company to question whether your injuries were actually sustained while working, or if they were incurred elsewhere. The company may then forward a letter to you denying your claim for benefits. The insurance company usually makes this decision within two weeks of the claim being set up, but sometimes they take up to thirty days to make a decision.

A denial of your claim by the workers’ compensation insurance company does not mean your case will be unsuccessful. Our attorneys help clients every day in these situations and often are able to overcome an insurance company’s denial to obtain the rightful benefits you deserve. Using our experience, we have many techniques to prove your injury happened as you describe.

Partial and Total Incapacity Compensation

If the workers’ compensation insurance company has agreed to pay your benefits, or if you appeal a denial and win, there are two main types of workers’ compensation weekly wage replacement checks you can receive: temporary partial disability checks and temporary total disability checks. Under temporary partial disability, you are deemed capable of doing some work though not necessarily your old job. Under temporary total disability, you are deemed unable to do any work at all.

You can receive workers’ compensation disability benefits as a result of an injury, or an illness that you sustain as a result of working. Due to fewer factories and other industrial jobs, as well as a significant decrease in the use of toxic chemicals in the workplace, illnesses due to work are less frequent than they once were. The vast majority of Boston workers’ compensation cases involve work accidents that result in injuries. Our law firm handles both workplace injury and illness claims, so do not hesitate to contact us for a free consultation.

Massachusetts General Laws Chapter 152, Section 35 defines the partial incapacity benefits an injured worker may be entitled to. The amount an injured worker is entitled to be laid out as either 45% of the injured worker’s average weekly wage prior to the accident, or 40% of the difference between the worker’s current wage and average weekly wage at the time of the accident.

Massachusetts General Laws Chapter 152, Section 34 allows a totally incapacitated worker to collect temporary total disability checks while they are out due to the injuries sustained from a work accident. The workers’ compensation insurance company is required under Section 34 to pay you 60 percent of your average weekly wages prior to becoming injured at work. So long as a doctor continues to state you are totally disabled from working due to the injuries you sustained while working, you have an argument for Section 34 benefits. You can collect total disability benefits for a maximum of three years. If you are still disabled after three years, you may qualify for permanent and total disability benefits under Section 34A.

State Average Weekly Wage (SAWW)

The State Average Weekly Wage is promulgated by the DIA and it is adjusted at necessary intervals to keep in line with inflation and the actual wages being paid in the Commonwealth. The SAWW serves as a cap on the amount of compensation an injured worker can receive each week. If the injured worker’s compensation rate is higher than the SAWW, the worker can only receive the SAWW. Similarly, the state also releases a minimum average weekly wage each year. If a totally disabled worker’s compensation rate is below the state’s minimum amount, the injured worker is entitled to receive either the state minimum amount or 100% of their wages if their wages are below the minimum amount.

The worker’s compensation system was designed to ensure an injured worker still had a wage while recovering from injuries. The system acts as a wage replacement system. However, the legislatures wanted to make sure that someone could not sit at home and collect the same amount of money on worker’s compensation that they could be earning if they were working. There was a fear that individuals would malinger, meaning they would prolong their injuries with little incentive to return to work due to their wages being paid in full. Malingering is a term often used by administrative judges (AJs) at the Social Security Administration, as well as administrative judges (AJs) at the DIA when referring to a person that is either feigning injury or illness or exaggerating a real injury or illness, so they can collect benefits instead of working. As a result of these concerns, the worker’s compensation system of total and permanent incapacity benefits was established, and the state AWW was put in place.

While it is true that malingering does happen in some cases, it is far from the level that many often believe. As our experienced Boston workers’ compensation lawyers have seen, the vast majority of workers who file claims are genuinely injured and in dire need of benefits to take care of themselves and their family. After all, who would want to sit at home for 60 percent of their old pay when they could be working and earning much more? When you are unable to work and have no other means to support yourself, these workers’ compensation benefits are often the only real way you can make ends meet.

In the meantime, the best thing you can to do maximize your chance of obtaining a full and appropriate workers’ compensation benefit is to make sure have someone on your side who will fight for your rights and interests. The worker’s compensation attorneys at our firm are dedicated to ensuring you get what you are entitled to.

Contact the Jeffrey Glassman Injury Lawyers today for a free and confidential consultation.


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