Weekly compensation is a product of an employee’s inability to work, rather than of the injury, and as such, the degree of disability that an employee suffers is a question of fact. Thus, there will often be an inquiry into whether the employee is prevented from working and to what degree.
An employee is partially incapacitated when or she he can still preform some work, but not the same as before. An employee is totally incapacitated when he or she is prevented from preforming work of a “substantial character.” An employee is permanently and totally incapacitated when he or she is so disabled as to prevent him from preforming work of more than a “trifling character.”
An employee who is totally incapacitated is entitled to receive 60% of his or her weekly compensation, subject to the maximum and minimums, for not more than 156 weeks. Before becoming eligible for compensation, an employee must be incapacitated for five or more days, although they do not need to be contiguous. If an employee is out for more than 21, days the payment begins on the day of the incapacity, but if the employee is out for more than five but less than twenty one, payment beings on the sixth day.
An employee who is partially incapacitated may be entitled to compensation equal to 60% of the difference between his average weekly wage before vs. after the injury, but not more than 75% of what he would receive if he were eligible for benefits from total incapacitation. The total number of weeks an employee may receive compensation for partial incapacity cannot be more than 260, however, upon agreement or finding of certain factors, it may increase.
If an employee is permanently and totally incapacitated, the employee is entitled to receive benefits equal to 60% of the average weekly wage, still subject to the maximum and minimum wages, but for an indefinite period. An insurer, however, can at any point bring a proceeding in order to demonstrate that the employee’s condition has improved.
* This is the eighth of an eight part series on the Massachusetts Workers Compensation Act. Read part 7 here.