Section 35 - Temporary Partial Disability Benefits
M.G.L. Chapter 152, Section 35 is known as temporary partial disability. This is a section of the MA Workers Comp Law that provides weekly disability payments to Employee's who are partially disabled. This means that while they may not be able to perform the job they were doing at the time of their work injury, the do retain the ability to do some work. This means, they have the ability to earn, or an earning capacity. In situations like this, Section 35 provides benefits to the injured employee representative of this ability to earn, and often serves to bring the Employee back close to his or her pre-injury average weekly wage, when combined with the assigned earning capacity.
Assume that an office manager sustains falls and breaks her leg on the job. As a result of this injury, she is forced to go out of work and have surgery. She would likely be entitled to Section 34, temporary total disability benefits following the injury, leading up to the surgery and for some time post surgery. At that point, she would receive 60% of her pre-injury average weekly age. If she were making $1,200 per week, she would get ($1,200 x 60%), or $720 per week while she remained totally disabled from working.
However, let's assume that two months after surgery, she was starting to recover, but her injury required her to rest and stay off her feet for extended periods throughout the day. Further, let's say that her doctor were to advise that if she were to return to work, to only work 3 hours per day. Finally, let's assume that this individual were motivated to return to work and did so, in accordance with her doctor's restrictions of only 3 hours per day. In a situation like this, because of her reduced hours, she is now only making $400 per week. In such a scenario, she could receive Section 35 benefits on top of the $400 she makes working.
It breaks down using the following formula: (pre-injury average weekly age - current earnings) x 60%. So, in our example, she would receive ($1,200 - $400)=$800 x 60%=$480.
She would be able to work and earn $400 per week, and collect Section 35 benefits of $480, totaling $880 per week.
Section 35 is available for up to 5 years, or 260 weeks. However, an employee cannot receive more than 7 years of combined Section 34 and 35. So, if the employee were to receive 3 years of Section 34, he or she would only be able to receive 4 years of Section 35.
The most one can receive on Section 35 is 75% of their Section 34 rate. So, if someone's comp rate on Section 34 were $1,000 per week, the most they can receive on Section 35 is ($1,000 x 75%) or $750 per week. This is known as Max Partial, and is often an agreed upon rate for individuals who just become eligible for Partial Disability benefits. This is mainly because individuals who recently become disabled from their prior job but retain an earning capacity, are not usually expected to be able to go out and earn immediately. Things like job retraining and other factors often prevent the Employee from immediately being able to go out and earn. As such, max partial is often an agreed upon rate until a reasonable earning capacity can be assigned.
Partial disability is a complex area of the Massachusetts Workers Comp Law. Having an experienced Workers Comp Lawyer at your side is essential in ensuring your rights are adequately protected following a work related injury.
At Troupe Law Office, we have been handling workers comp cases for injured workers and their families for close to 50 years. We are located on teh North Shore of Boston, in Peabody. We handle cases all over Massachusetts, in cities and town such as Boston, Peabody, Salem, Lynn, Beverly, Andover, Woburn, Reading, Topsfield, Newburyport, and Haverhill.
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