DiBlasi's Case
DiBlasi's Case
Opinion of the Court
This is an appeal by the employee from a decree entered in the Superior Court dismissing his claim for further incapacity compensation under G. L. (Ter. Ed.) c. 152, §§ 34, 35, as appearing in St. 1946, c. 321, §§ 1, 3, and for further dependency payments under § 35A, inserted in said chapter by St. 1945, c. 717, on the ground that he has already received the maximum of $10,000 under said §§ 34 and 35.
The .employee was injured on September 5, 1946, and was paid at the rate of $25 on account of total incapacity and dependency compensation amounting to $22.50 up to March 10, 1948, when payments continued for partial incapacity at the rate of $25 and dependency compensation of $22.42, which with an earning power of $30 totaled $77.42, the amount of his average wages when he was injured. Thereafter, compensation with minor changes was paid until October 29, 1950, when the insurer stopped payments, having paid compensation on account of total and partial incapacity in the sum of $5,422.82 and for dependency in
The Industrial Accident Board ordered the resumption of weekly incapacity payments of $25 and of weekly dependency compensation at $17.50.
It is convenient to start with St. 1945, c. 717, which made material changes in the workmen’s compensation law. It amended § 34 regulating compensation for total incapacity by increasing the rate of compensation, by eliminating the period during which compensation could be paid, and by increasing the maximum amount to $7,500. It made similar changes in § 35 regulating payments for partial incapacity and provided that “the amount of such compensation shall not be more than seventy-five hundred dollars.” Both of these sections were further amended by St. 1946, c. 321, §§ 1, 3, by increasing the rates of compensation and by substituting $10,000 for $7,500, and these sections as then amended were in force at the time of the injury.
Section 34A providing for payment on account of permanent and total incapacity was amended by St. 1945, c. 717, and by St. 1946, c. 321, § 2, which was in effect when the injury was received. As amended by both of these last mentioned statutes § 34A provided that while the incapacity for work “is both permanent and total the insurer shall pay to the injured employee, following payment of the maximum amount of compensation provided in sections thirty-four and thirty-five, or either of them,” compensation at a certain rate.
Section 35A was inserted into c. 152 by St. 1945, c. 717. This new section, which was in force when the employee was injured, provided: “Where the employee has dependents, the sum of two dollars and fifty cents shall be added to the weekly compensation under sections thirty-four, thirty-four A and thirty-five, for each person wholly dependent, as defined in section thirty-two, but in no case exceeding his weekly wage at the time of injury.”
It is to be noted that §§34 and 35 are concerned entirely with fixing the rates of compensation and provide that the
The only limitation imposed upon adding the dependency compensation to the incapacity compensation is the provision in § 35A, as appearing in St. 1945, c. 717, “but in no case exceeding his weekly wage at the time of injury.” See Kaczmarczyk’s Case, 328 Mass. 9.
It follows that the final decree is reversed and a decree is to be entered for the employee in accordance with the finding of the board. Costs under G. L. (Ter. Ed.) c. 152, § 11A, inserted by St. 1945, c. 444, shall be allowed by the single justice.
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Reference
- Full Case Name
- John DiBlasi's Case
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- Published