workers compensation attorneyWhen a worker is injured in Massachusetts, he or she is, generally, eligible for workers’ compensation. The type and amount of benefits depends on the nature of the worker’s injury and extent of disability, if any. Some workers may suffer injuries that render them temporarily disabled or require medical treatment only. Other workers, however, suffer injuries that leave them permanently injured and disabled.

For the worker who suffers an injury that leaves them with a permanent impairment, aside from the disability benefits and medical benefits, there are other types of benefits under the Massachusetts Workers’ Compensation Act (Chapter 152) that offer additional compensation. These benefits are known as loss of function and fall under Section 36 of the Act.

Overview of Section 36 Benefits for Loss of Function

Section 36 offers compensation to workers who suffered an amputation or permanent disability from their work-related accident. Section 36 also provides for compensation for scarring and disfigurement, but this article specifically covers loss of function. There are various body parts and functions that are covered under Section 36 for loss of function. The Massachusetts Department of Industrial Accidents has issued a Guide for Calculating Loss of Function Benefits. This Guide details the numerous body parts and functions that are covered, such as amputation or loss of use in the arms, hands, wrists, fingers, legs, feet and ankles as well as loss of vision, hearing, smell, sexual function, balance, and many more.

In order to qualify for Section 36 benefits, the loss of function must be permanent. Workers who are undergoing treatment or awaiting surgery may not yet qualify for loss of function benefits. This is because the treatment or surgery may improve the disability or impairment. Workers who have reached a maximum medical improvement (MMI) and whose doctor or surgeon has formed an opinion that the worker’s impairment is permanent and assigns a percentage of loss of function qualify and are eligible for Section 36 benefits.

How Much are Section 36 Benefits for Loss of Function

The amount of Section 36 benefits for loss of function depends on several factors. The Guide mentioned above provides the information needed for a worker or their workers’ compensation attorney to calculate the loss of function benefits.

The first item to determine is the State Average Weekly Wage (SAWW) for the year the worker was hurt on the job. This figure is determined by the DIA each year. Once the SAWW is determined, you would look to the Guide to determine the body part or other function impaired to determine the multiplier (the figure you would multiply by the SAWW). For some Section 36 benefits (e.g., amputations) you would stop there. For other disabilities, you would multiply the number by the percentage of impairment assessed by the doctor or surgeon to arrive at the final compensation amount.

Let’s look at an example:

Ed was working in a warehouse driving a forklift. One day in 2020 he fell at work and suffered a broken leg. His injury was severe and required surgery with internal fixation (the use of a plate and screws).  Following months of physical therapy, Ed’s surgeon determines he has reached a maximum medical improvement and Ed returned to work, full duty.  Ed collected disability benefits while he was out of work and now seeks Section 36 loss of function benefits. Ed’s surgeon opines that Ed’s injury resulted in a permanent loss of function of 12% in his leg.

The SAWW (effective 10/01/2020) for 2020 (the year Ed was injured) is $1,487.78. Looking at the Guide, the multiplier for permanent loss of use in the leg is 39. Thus, we would multiply $1,487.78 by 39 which is $58,023.42. Then we would take 12% of that figure (the percentage of impairment assessed by Ed’s surgeon) for the final loss of function compensation of $6,962.81 ($58,023,42 X 12%).

The above example is for illustrative and application purposes only. There are many other factors that may be considered by both the employee or the insurer in specific claims.

Obtaining Section 36 Loss of Function Benefits

In our experience, workers’ compensation insurance carriers do not usually offer Section 36 benefits or even tell injured workers that they may be eligible for these loss of function benefits. Many times, the insurance company and their adjusters hope the injured worker recovers from their injury and just goes back to work avoiding having to pay any further compensation. Therefore, an injured worker normally must file a claim seeking Section 36 benefits.

An injured employee may be at a disadvantage when filing a claim for Section 36 – loss of function benefits on their own because they may not be aware of the requirements to file such a claim. There is a Code of Massachusetts Regulation that requires all claims for benefits under Section 36 to be “accompanied by a physician’s report which indicates that a maximum medical improvement has been reached and which contains an opinion as to the percent of permanent function loss according to the American Medical Association’s guide to physical impairment.”  Sometimes, a treating surgeon may not be willing to draft such a report or may not be familiar with the impairment guidelines.

Contact Our Experienced Workers' Compensation Attorneys Today

Injured workers who have suffered permanent injuries that result in loss of function or use and are interested in seeking Section 36 benefits should consult with an experienced Massachusetts workers’ compensation attorney. At Mahaney & Pappas, LLP, we have helped many workers obtain compensation for loss of function and are knowledgeable and skilled in the claims process and procedure. We work with treating physician and surgeons to obtain the necessary documentation to support a claim for Section 36 benefits. If your treating doctor is willing or familiar with the report required by the law in Massachusetts, we work with many other medical experts that may provide the report and opinions needed.

Charles S. Pappas
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Massachusetts Personal Injury & Workers' Compensation Attorney
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