Unfortunately, some workers in Massachusetts suffer very severe injuries on the job. These serious injuries can occasionally cause permanent disabilities that result in the injured worker being completely unable to work and earn wages. This can be a very devastating situation for, not only the injured workers, but for their family as well.
Fortunately, the Massachusetts Workers’ Compensation Act (M.G.L. c. 152) provides weekly compensation benefits for injured employees who are found to be permanently and totally disabled from earning wages. This is an overview of permanent and total disability benefits available to injured workers in Massachusetts.
What is Considered a Permanent & Total Disability?
The term Permanent is defined by the Black’s Law Dictionary as “Fixed, enduring, not subject to change.” It is generally the opposite of temporary. Massachusetts case law has defined permanent disability as a disability that will continue for an indefinite period of time which is not likely to end. A work injury may be considered permanent even if the injured worker may possibly recover from his or her injury at some remote or unknown time in the future.
When we hear the term permanent disability, the more severe injuries come to mind. For example, if a construction worker falls from a roof and suffers a broken neck that leaves him or her paralyzed, the injuries are very likely to be considered permanent and total. However, the injuries or disability do not necessarily need to be this severe to be considered permanent. Case law has interpreted Section 34A to mean that someone who cannot work, other than what would be classified as work of a mere trifling nature.
The injured worker does not need to have complete physical incapacity to be found permanently disabled from work. Permanent and total disability is generally considered to be such as to prevent a worker from engaging in any work to earn wages. In the Slater's Case, 55 Mass. App. Ct. 326 (2002), the worker was struck in his head by a hook at the end of a crane in a construction site accident. This worker suffered a traumatic brain injury that severely incapacitated his functioning and he was awarded permanent and total disability benefits.
In another case in Massachusetts from 2013, a licensed practical nurse suffered an industrial accident when she injured her neck, shoulder, right hand and abdomen while attempting to restrain a patient. At a hearing before the Massachusetts Department of Industrial Accidents, the employee testified that she was unable to work due to her pain. The judge there credited her testimony and found “the employee could not return to work secondary to her pain, reduced range of motion, lack of strength in her hand, and grogginess because of her medications.” The nurse was awarded permanent and total disability benefits.
A key issue in that case, as with most workers’ compensation cases, was consideration of whether the injured worker could work in any capacity because of pain, not just whether she could work as a nurse. The judge found that the employee was totally and permanently incapacitated from all remunerative employment.
Thus, the work accident and injuries do not necessarily have to be the most severe imaginable to be considered permanently and totally disabled.
Benefits Available for a Permanently & Totally Disabled Worker in Massachusetts
In Massachusetts, generally, a worker who is injured on the job is entitled to workers’ compensation benefits. The benefits a worker may receive depends on their injury and the extent of the injury. If an injured worker is unable to return to work and earn wages because of their work-related injury, they are entitled to disability benefits. Disability benefits are designed to replace a portion of the wages an injured employee is unable to earn due to their work-related injuries.
Under the Massachusetts Workers’ Compensation Act (Chapter 152 of the Massachusetts General Laws) an injured employee may receive three types of weekly compensation benefits. One of the three weekly disability benefits is permanent and total disability benefits. This is governed by M.G.L. c. 152 § 34A.
Section 34A provides, “While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of compensation provided in sections thirty-four and thirty-five, a weekly compensation equal to two-thirds of his average weekly wage before the injury…” Under Massachusetts law, injured workers who meet this burden can collect weekly permanent and total workers’ compensation for their entire lives, should their medical situations warrant it. Additionally, an injured employee who qualifies for permanent and total disability benefits and has received these benefits for over two years can also qualify for cost of living adjustment (COLA) payments under Section 34B.
Calculating Permanent and Total Disability Benefits Under Section 34A
The permanent and total disability benefits are more than the weekly benefits available under Sections 34 (temporary total disability) and Section 35 (temporary total disability). For this reason, employees who suffer severe injuries that may be permanent and total are better served seeking the higher weekly compensation from Section 34A. This offers them more weekly compensation.
For example, if a worker’s average weekly wage at the time of his injury on the job was $750 his benefits would be calculated as follows:
Temporary Total Disability (Section 34): $750 X 60% = $450/week
Max Temporary Partial Disability (Section 35): Sec. 34 rate of $450 X 75% = $337.50/week
Permanent and Total Disability (Section 34A): $750 X 66.67% = $500/week
As you can see, an injured worker will receive more weekly compensation from workers’ compensation for permanent and total disability benefits.
Also, while the statute states that the permanent and total disability benefits are available “following payment of Sections 34 and 35 compensation”, Massachusetts case law has held that an employee who is found to be permanently and totally disabled does not need to exhaust his temporary benefits under Sections 34 and 35 before collecting the higher amount of permanent total disability benefits under Section 34A.
How Do You Know if You are Entitled to Permanent & Total Disability Benefits?
While not all seriously injured workers are entitled to permanent and total disability benefits, the best way to determine if you are is to seek the advice of an experienced Massachusetts workers’ compensation attorney.
An experienced lawyer will be able to evaluate your work accident case and medical records to determine whether you may be entitled to the higher weekly rate of permanent and total disability benefits. If an attorney feels that you are entitled to these benefits, they will know what legal action to take to protect you and obtain these benefits.