Section 35, Chapter 152: Partial Incapacity Compensation

In Massachusetts workers’ compensation cases, you can qualify for partial incapacity benefits if you are still able to work, but have lost part of your earning capacity due to your injury or illness. In many cases, this is due to the injury forcing you to change jobs at a lower pay rate, work fewer hours, or work with restrictions. This provision is spelled out in Chapter 152, Section 35 of the Massachusetts Workers’ Compensation Law.

In determining what type of benefits an injured worker can qualify for, first the courts look at whether the worker is totally or partially disabled, before then determining whether that disability level is temporary or permanent.

For example, you may be deemed temporarily totally incapacitated, pursuant to Massachusetts General Laws Chapter 152, Section 34. You can qualify for these benefits if you are totally unable to work, but for a temporary period of time. This section in the Workers’ Compensation Act for the Commonwealth of Massachusetts allows a person to be paid 60 percent of what their average weekly wage was prior to becoming injured for a period of no more than three years. It should be noted that if your compensation rate is less than the state minimum amount, the state minimum amount as published by the DIA can be used in place of your compensation rate. If your actual wage is less than the state minimum amount, you can receive 100% of your wages. Similarly, if you are making a lot of money, the state average weekly wage (SAWW) can be used to cap the maximum amount of compensation you receive each week.

When your disability is permanent in nature, you may qualify for permanent total disability benefits under Massachusetts General Law Chapter 152 Section 34A. Under this section, you will be paid two-thirds of what your average weekly wage was before becoming disabled. However, there is a minimum and a maximum wage cap on the amount you can receive. The purpose of this is to make sure the wage is high enough to keep people off public assistance, while, at the same time, making it harder for people who are not actually injured to pretend they are, so they can sit and home and collect a check each week.

We should note that it is a widespread concern that people collecting disability benefits would rather do that than go to work, but, in reality, the vast majority of workers injured on the job who are collecting Boston workers’ compensation benefits are truly suffering from debilitating injuries and would much rather be working. We know this not only from personally working with many injured workers over the years, but also from the fact that it is very difficult to fake an injury when you must not only submit your own medical records, including imaging and other test results, but also the fact that you may have to undergo an impartial medical exam by a doctor who is on the DIA’s list of approved physicians.

The third type of workers’ compensation that disabled workers can receive is temporary partial incapacity compensation. These benefits refer to when you, an injured worker, are unable to maintain your full earning capacity for a period of time and due to your work injury or illness.

Partial Incapacity: Compensation

When you are injured on the job in Boston and apply for workers’ compensation benefits, your employers’ workers’ compensation insurance company must notify the employee in writing of its intent to deny the claim, or they must pay benefits. If the insurance has decided to pay benefits either initially or upon meeting with a conciliator at the Department of Industrial Accidents for the Commonwealth of Massachusetts, or upon being ordered to pay benefits by an administrative judge (AJ) at the DIA, you will receive either temporary or total disability benefits, or temporary partial disability benefits, depending on the level of your disability.

Massachusetts General Laws Chapter 152, Section 35 of the Massachusetts Workers’ Compensation Act, outlines the benefits due for a worker who suffered an on-the-job injury that results in a partial incapacitation. It states that the injured worker shall be entitled to forty-five percent of their average weekly wage prior to the industrial accident. If the injured worker is working light duty and is earning less than their normal wages, then they are entitled to sixty percent of the difference between the amount he or she was making before the workplace accident and the amount he or she can make following the accident.

For example:

  • A worker was earning $500 weekly.
  • The worker was injured on-the-job.
  • As a result of the on-the-job injury, the worker is given a light duty work release by their doctor and is deemed partially disabled.
  • The worker returns to work on a light duty basis, earning $200 a week.
  • In such a situation, the worker would be entitled to receive their new paycheck ($200), plus 60 percent of the difference in pay between the new check and the prior wages, $180 ($500-200=$300, $300 x 60%).

Under Section 35, an injured worker is prevented from receiving more than 75 percent of the wages the worker would receive if he or she was able to collect total incapacity benefits under Section 34 of the workers’ compensation act. Calculating the appropriate amount of partial disability benefits can get rather confusing. The best thing you can do is to work with your experienced workers’ compensation attorney and learn how your benefits will be calculated based on the individual facts of your case.

Example of Partial Incapacity

Suppose a worker is employed as a cashier at a local supermarket in Brighton, Massachusetts, just outside of Boston proper. She is working for a few years and begins to develop pain in her wrist and goes to a doctor for a diagnosis. She is told she has carpal tunnel syndrome (CTS). First, it is important to note that carpal tunnel syndrome that is due to your job is a workplace injury under the Massachusetts Workers’ Compensation Act (WCA), as we discuss in another article. Many people think this is an injury that will get better on its own or will stop hurting when you go home at the end of your shift. However, often times it is a serious injury that may require more than just a brace and aspirin from your local CVS. The pain from carpal tunnel syndrome can get worse throughout the day and will often keep people up into the night, as the pain radiates up and down their arm. You should make sure that you get the necessary treatment at a local hospital or urgent care facility as soon as possible. In addition, you must make sure to file a timely claim to your employer of your workplace injuries.

Let’s assume this worker does as they should and files a timely claim right away with her employer. She then sees her doctor and is diagnosed with carpal tunnel syndrome. Her doctor states she can return to work on light duty, with certain restrictions. Her employer welcomes her back to work and offers her a position that accommodates the doctor’s restrictions. If her employer pays her the normal wages she had been receiving prior to the accident, then no workers’ compensation benefits would be due. However, if the employer pays her less than the workers' compensation insurance carrier may be required to pay 60% of the difference in pay between the prior wages and the current wages.

Another aspect to bear in mind is Section 35 limits the maximum number of weeks of partial incapacity benefits an injured worker can receive to no more than 260 weeks. In other words, you will only be paid benefits under this provision of the law for a maximum of five years. However, that number can be extended to 520 weeks (ten years) in cases where the workers’ compensation company agrees to extend this or the administrative judge (AJ) funds that the employee has suffered a 75 percent or more loss of any individual body function or a loss of sensation. Again, this can get rather complicated to calculate, and it may or may not apply to your actual case, so the best thing you can do is speak with an experienced legal team in the greater Boston area.

Partial incapacity benefits can be enough to help you tread water financially, which is important no matter what your career.

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


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