Massachusetts Injury Lawyers Blog
An injured worker may remain unable to work even after the statutory period for temporary total incapacity benefits ends. What happens next can have a major effect on the household budget. A recent Massachusetts Department of Industrial Accidents Reviewing Board decision explains why a judge cannot find that a worker has no capacity to earn wages and then calculate partial incapacity benefits as though that worker could earn a full-time wage. If your benefits are about to change, ask a Massachusetts workers’ compensation attorney to review both the medical findings and the proposed weekly rate.
Facts and Procedural History
Reportedly, an airline employee tripped over a golf bag at work, fell backward, and used her arm to keep her head from striking the ground. She later reported continuing neck and shoulder symptoms. The insurer paid temporary total incapacity benefits for a period, then stopped. The employee sought their resumption, and an administrative judge heard evidence about her medical condition and ability to work.
Allegedly, the judge credited the employee’s account of her limitations and adopted several medical opinions. The judge found that the work injury continued to cause her symptoms and that she remained totally incapacitated from gainful employment. The judge awarded temporary total benefits through the end of the available statutory period. For the period after that, however, the judge assigned her an earning capacity of $600 per week and awarded only $28.63 per week in partial incapacity benefits. Both sides appealed: the insurer disputed causation and total incapacity, while the employee challenged the assumed earning capacity.
Demonstrating an Injury is Work Related
The Reviewing Board upheld the judge’s findings on the issues raised by the insurer. The medical evidence and testimony the judge credited supported the finding that the employee’s injuries remained related to the workplace accident. The board also explained that an administrative judge has discretion to weigh evidence about the extent of incapacity. It found no basis to disturb the conclusion that this employee could not perform gainful work.
The benefit calculation was different. A finding of continued total incapacity could not be reconciled with an assumed $600 weekly earning capacity for the same period. The board explained that when a worker remains totally disabled after exhausting temporary total benefits under section 34, section 35 partial incapacity benefits must be paid at the statutory maximum applicable to that worker. The board therefore vacated the $600 earning-capacity finding and ordered weekly section 35 benefits of $291.47 from the date section 34 benefits ended. It did not find that the employee had recovered or could earn minimum wages.
This decision does not mean that every worker who reaches the section 34 limit automatically receives the maximum section 35 rate. The key was the judge’s specific, supported finding that this employee remained totally unable to work. In another claim, credible medical and vocational evidence may support a real earning capacity. The practical lesson is to read the judge’s findings alongside the benefit calculation. If they conflict, the weekly payment may be wrong even when the medical ruling favors the worker.
Talk to a Seasoned Massachusetts Workers’ Compensation Attorney
A change from total to partial benefits can produce a sudden drop in income. Before accepting the new amount, make sure the assigned earning capacity reflects the findings and the evidence in your claim. Attorney James K. Meehan is a seasoned Massachusetts workers’ compensation lawyer who can evaluate a disputed rate and explain the available appeal options. Call the Law Office of James K. Meehan at 508-822-6600 or use the firm’s online contact form to discuss your benefits.