Puzzling provisions: Workers’ Compensation

 The two most puzzling provisions of the Massachusetts Workers’ Compensation statute, M.G.L. c. 152, are sections 34 and 35. In a nutshell:

• Section 34 involves compensation for total incapacity. It states, “[d]uring each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case [the] weekly compensation shall be equal to his average weekly wage.” It is good to keep in mind that the employee cannot collect workers’ compensation benefits under this section for more than 156 weeks.
  
  Section 34A relates to permanent and total incapacity. Under those circumstances, the insurer pays the employee a weekly compensation equal to two-thirds of his or her average weekly wage pre-injury, but neither more than the maximum nor less than the minimum weekly compensation rate.



• Section 35 concerns partial incapacity, and states that, “during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four.”

Additionally, it is noteworthy that at the insurer’s request, a claimant must submit to an independent medical examination (IME,) pursuant to Rule 35 of the Massachusetts Rules of Civil Procedure. Finally, on April 16, 2009, the Oregon Department of Consumer and Business Services reported that Massachusetts has the third-lowest workers’ compensation premium rates in the country, with decreases of over seventeen percent attributable to Governor Patrick’s administration.