Massachusetts General Laws

Mass. Gen. Laws ch. 152, § 35 (2026)

Partial incapacity; compensation

✓ current as of July 2026

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Section 35. While the incapacity for work resulting from the injury is partial, 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. An insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction.

The total number of weeks of compensation due the employee under this section shall not exceed two hundred sixty; provided, however, that this number may be extended to five hundred twenty if an insurer agrees or an administrative judge finds that the employee has, as a result of a personal injury under this chapter, suffered a permanent loss of seventy-five percent or more of any bodily function or sense specified in paragraph (a), (b), (e), (f), (g), or (h) of subsection (1) of section thirty-six, developed a permanently life-threatening physical condition, or contracted a permanently disabling occupational disease which is of a physical nature and cause. Where applicable, losses under this section shall be determined in accordance with standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairments. Where the insurer agrees or the administrative judge finds such permanent partial disability as is described in this paragraph, the total number of weeks the employee may receive benefits under both this section and section thirty-four shall not exceed five hundred twenty. Where there has been no such agreement or finding the number of weeks the employee may receive benefits under these sections shall not exceed three hundred sixty-four.

Notes of Decisions

Cited in 63 cases (1 in the last 5 years), 1921–2026 · leading case: Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995).

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Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995). · cites it 4× “39-A, § 153(8); Mass.Gen.L. ch. 152, § 35; Minn.Stat. Ann.”

Sjoberg's Case, 476 N.E.2d 196 (Mass. 1985). · cites it 8× “The Appeals Court held that “the award for impaired earning capacity under G. L. c. 152, § 35, was not ‘tainted by error of law.”

DaLuz v. Dep't of Corr., 746 N.E.2d 501 (Mass. 2001). “7 Subsequently, their cases were heard by the Department of Industrial Accidents (DIA), as a result of which their workers’ compensation benefits were modified from total to partial disability pursuant to G. L. c. 152, § 35. Based on this modification of benefits, the department…”

Louis's Case, 676 N.E.2d 791 (Mass. 1997). · cites it 4× “Louis’s § 34 benefits were discontinued and Public began paying her partial incapacity benefits under G. L. c. 152, § 35, at a rate of $131.06.”

Buchanan v. Contributory Ret. Appeal Bd., 839 N.E.2d 338 (Mass. App. Ct. 2005). · cites it 2× “152, § 34, from November 4, 1993, to June 12, 1995, and partial incapacity benefits under G. L. c. 152, § 35, “from June 13, 1995 to date and ongoing.”

Dalbec's Case, 867 N.E.2d 792 (Mass. App. Ct. 2007). · cites it 2× “As a result of the conference, the presiding administrative judge ordered the payment of total disability benefits through May 17, 2004; and the payment of temporary partial disability benefits thereafter under G. L. c. 152, § 35. 3 Both Dalbec and the insurer appealed *308 from…”

Massachusetts Insurers Insolvency Fund v. Berkshire Bank, 62 N.E.3d 56 (Mass. 2016). · cites it 2× “152, § 34, and Centennial voluntarily commenced payments under G. L. c. 152, § 35 [providing for partial incapacity benefits].”

Brown v. Leighton, 434 N.E.2d 176 (Mass. 1982). · cites it 2× “G.L.c. 152, § 35. See Devine's Case, 236 Mass.”

Johnson's Case, 136 N.E. 563 (Mass. 1922). · cites it 2× “751, Part II, § 10, as amended (see now G. L. c. 152, § 35), that “While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between his…”

Cornetta's Case, 860 N.E.2d 687 (Mass. App. Ct. 2007). · cites it 2× “The employee’s claim for partial incapacity benefits, pursuant to G. L. c. 152, § 35, was allowed by the administrative judge in a decision issued on February 23, 2001.”

Haslam's Case, 883 N.E.2d 949 (Mass. 2008). · cites it 2× “152, § 34, partial incapacity benefits pursuant to G. L. c. 152, § 35, and medical benefits pursuant to G.”

McCarty's Case, 837 N.E.2d 669 (Mass. 2005). “Inclusion of the amounts paid to fringe benefit plans produces even more anomalous results in the calculation of partial disability benefits under G. L. c. 152, § 35. The dramatic inflation of the average weekly wage skews the computation determining when a partially disabled…”

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