The injured employee, a 53 year-old truck driver, suffered a ruptured lumbar disc that required surgery. He was left with neurological deficits that prevented a return to his previous heavy work. The employee, who earned an average weekly wage of approximately $ 1,500.00, was receiving Section 34 benefits of $ 898.60 per week.
The workers’ compensation insurance company was attempting to modify or terminate his weekly benefits under the Massachusetts Workers’ Compensation Act when settlement was negotiated. The insurer took the position that the employee had an earnings capacity, as he was a college graduate who was also bilingual. Had the insurer been successful, the employee’s benefits would have been reduced to no more than $ 673.95 payable over 4 years, a total of $ 175,227.00.
The settlement was reached after the employee raised Section 34A, permanent and total disability, in response to the insurer’s request to terminate weekly payments. Proper allocation under the Scioratta v. Bowens decision resulted in payment of full Social Security disability benefits.
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