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DETERMINING THE EXENT OF YOUR DISABILITY IN INDUSTRIAL ACCIDENT CASES
The Worker's Compensation Act provides for weekly benefits for injured workers based upon an analysis of a number of factors, in addition to the worker's industrial injury. The types of weekly benefits to which an insured worker may be entitled include: temporary, total disability benefits (M.G.L. c. 152, section 34); temporary partial disability benefits (M.G.L. c. 152, section 35); permanent and total disability benefits (M.G.L.c. 152, section 34A); and survivor's benefits (M.G.L.c. 152, section 31).
In determining whether a worker is totally disabled, partially disabled, or totally and permanently disabled, an Administrative Judge at the Department of Industrial Accidents will rely upon the holdings in Supreme Judicial Court Cases. In Frennier's Case 318 Mass. 635 (1945), and Scheffler's Case 419 Mass. 251 (1994), the Court laid out the factors that must be analyzed when an Administrative Judge at the Department of Industrial Accidents makes a decision as to the type or benefits, if any, that an injured worker should receive. In addition to evaluating the seriousness of the worker's industrial injury, the Administrative Judge must consider the employee's education, training, age and work experience, in order to determine the earning capacity, if any, of the injured worker in the open labor market. That earning capacity must be substantial, and not merely trifling, according to the case law.
So what does this mean to an employee who has been injured at work? At some point in time after the work injury, it means that the insurance company and its attorneys will raise a challenge as to the extent of the injured employee's disability. If the insurer can prove that the injured worker has an earning that is more than "trifling", the law requires that an Administrative Judge reduce the injured worker's benefits by a minimum of twenty-five percent of the employee's total worker's compensation rate, which was paid for temporary, total compensation benefits.
How substantial is this reduction? A reduction of twenty-five percent, per week in temporary, partial benefits, over the course of a month means that the injured worker, at best, can expect to lose benefits equal to one week's temporary, total disability benefits, per month.
No matter how small or trivial an issue may seem to an injured worker, it is important to consult with a seasoned worker's compensation attorney early in the process, in order to protect the worker's benefits to which the employee is rightfully entitled! There are many nuances within the Worker's Compensation Act that require expert knowledge as to how the law will be applied to an injured worker under the particular circumstances of that disabled worker's case. The employer's insurance company is staffed with claim adjustors who are worker's compensation specialists, and experienced attorneys who have an intricate knowledge of the Worker's Compensation Act. If you have any questions regarding your case, please contact the Law Offices of Pulgini & Norton, LLP for a free consultation!
