Section 34A, Chapter 152: Permanent and Total Incapacity Compensation

One of the common questions our Boston workers’ compensation lawyers are asked, other than, “How can I get approved for benefits,” is, “How long will my benefits last?” This is a very important question. Under the Massachusetts General Laws Chapter 152 Section 34, you can receive up to three years of temporary total disability benefits. But what if your injuries permanently disable you from ever working again? Under Section 34A of the Massachusetts workers’ compensation act (WCA), you may qualify for permanent and total disability/incapacity benefits. These benefits are incredibly difficult to obtain, but those that do receive them are entitled to the maximum workers’ compensation benefits of 66% of their average weekly wage prior to the accident.

Working with an experienced workers’ compensation attorney can greatly increase the likelihood of a successful outcome for you after you have been injured on-the-job. Our attorneys can assist in obtaining permanent total disability benefits for you after your work accident.

Examples Where Permanent and Total Incapacity May Apply

If you were working at a retail shop at Downtown Crossing in Boston and were in the back of the store stockroom working, there are a variety of ways you could be injured. Our experienced legal team has seen cases where employees were trying to get merchandise off a high shelf in the stockroom or out on the sales floor when a heavy box or individual piece of merchandise fell off the shelf and landed on the worker. This could result in many different types of serious personal injury. In some cases, the heavy object will land on the worker’s head, causing injuries ranging from a bruise to a fractured skull to even a traumatic brain injury (TBI).

Head injuries can have lifelong consequences for victims, as they may never fully regain all functions. They will also need a long-term occupational therapy plan that will cost a lot of money. This is one of the types of claims that are permissible in a workers’ compensation case in the Commonwealth of Massachusetts.

The box could also fall on your leg, causing a non-displaced fracture, or even a fully displaced fracture. With a displaced fracture, the broken bone has shifted from its original position. This type of fracture will often take much longer to heal than a fracture that is not displaced and may require surgery to repair the bone and reset it. This will often require metal hardware that is attached to the bone and anchored to the inside of the skin with bolts and plates.

In these cases, for there to be a finding of permanent and total incapacity, there must be a finding that your work-related illness or injury has rendered you unable to work in your own – or any – occupation for which you are suited based off your training, education, and experience. While an employee who suffers a traumatic brain injury or even a serious leg injury may technically be able to carry out certain jobs, if those cannot be applied to the worker’s training, education or experience, they may be still deemed totally and permanently incapacitated.

It should be noted you do not have to exhaust your temporary benefits before you apply for permanent benefits, and per the Massachusetts Executive Office of Labor and Workplace Development, you can receive benefits so long as you are disabled.

Prompt Reporting of Your Injury

Regardless of the cause of the injury, it is essential that you promptly report this injury to your supervisor. If you have a supervisor, report it to that person, and ask that he or she generate an accident report. If you are the only one in the store at the time, you need to call your manager or whomever you have been advised to call as outlined in your employee handbook and report the incident immediately. In some large companies, there is an employee injury hotline number to call when a supervisor is not present. The important thing is that you call someone or tell someone.

In addition to making a report of your Boston on-the-job injury, you will also be given the opportunity to seek medical attention for any injuries you have sustained. You should never decline medical attention. There are several reasons for this, but the most important one is that you want to make sure you are being properly treated, so your injury does not worsen without the proper care. For example, if you have a displaced fracture, as discussed above, and try to deal with the pain by taking over-the-counter painkillers, it may eventually start to heal. However, it may not heal properly due to the fracture not being reduced. A reduction is when a doctor resets the fracture either by performing surgery or manipulating the broken bone with his or her hands. Before and after X-rays are typically taken to make sure the bone has been properly set. If the fracture heals without being properly reset, you may be left with serious medical problems and a serious loss of function. The bone may also re-brake later, which is not something anyone wants to endure.

Another thing to keep in mind is that in the context of workers’ compensation cases, it doesn’t matter who was at fault with respect to your accident. Workers’ compensation is an exclusive remedy where the fault is irrelevant, as we discuss on our workers’ compensation blog. The only thing you need to prove is that you were injured on the job, or suffered from a work-related illness, that you are an employee within the meaning of the Workers’ Compensation Act, and that your injuries render your disabled from working. In the Commonwealth of Massachusetts, the Workers’ Compensation Act is found in Part I, Title XXI, Chapter 152 of the Massachusetts General Laws (MGL).

Prompt reporting of your workplace accident and immediately seeking medical care for your injuries will bolster your chances of obtaining permanent and total incapacity compensation.

Permanent and Total Incapacity: Compensation

As we have discussed in other Boston workers’ compensation articles, when you are injured you may be deemed totally or partially disabled by your doctor. The disability level your doctor finds helps to determine whether you are completely unable to work or whether you have certain limitations that allow you to work in some limited capacity. If you are completely unable to work, you are considered totally incapacitated. This total incapacity can be for a limited amount of time, or it can be deemed permanent.

Section 34 of Chapter 152, deals with workplace accidents that result in a temporary total incapacitation. Under this section, you can collect temporary total disability benefits for up to three years. If you are still incapacitated beyond that time period, you can apply for permanent and total disability benefits under Section 34A of the same act.

Under Section 34A, entitled an injured employee can collect permanent and total disability benefits once an employee has been deemed permanently and totally disabled under the Workers’ Compensation Act for the Commonwealth. The employer’s workers’ compensation insurance is required to pay an injured employee two-thirds of the workers’ average weekly wages prior to the accident once they qualify for permanent and total disability benefits. The weekly compensation amount is not permitted to exceed the state’s weekly maximum compensation rate, nor can the amount fall below the weekly compensation minimum, unless the employee’s average wages were below the state minimum amount at the time of the injury. The maximum and minimum amounts are determined each year by the Department of Industrial Accidents (DIA) for the Commonwealth of Massachusetts.

When you transition from temporary total disability benefits to permanent total disability benefits, the weekly workers’ compensation checks you receive changes from 60 percent of your average weekly wage to 66%. The State Average Weekly Wage minimum and maximum amount caps still apply to the permanent and total disability calculation. Arriving at the actual number can at times be rather complicated to calculate because there are other types of workers’ compensations benefits. Because there is much at stake with permanent and total incapacity benefits, it’s best to discuss the details of your case with an experienced Boston workers’ compensation attorney.

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


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