Decision  Rainey D. Slater v. G. Donaldson Construction

Date:	04/14/2000
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Number 040798-96
Location:	Boton

• Employee: Rainey D. Slater
• Employer: G. Donaldson Construction
• Insurer: Eastern Casualty

SMITH, J. This case involves interpretation of the following language in G.L. c. 152, § 34A, as appearing in St. 1991, c. 398, § 60:

While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of compensation provided in sections thirty-four and thirty-five, a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate.

(Emphasis supplied.) The issue before the reviewing board is whether an employee who has been totally incapacitated since his injury must receive payment of one hundred fifty-six weeks of § 34 total incapacity benefits before he can collect § 34A benefits. Concluding that § 34A requires such benefit exhaustion, we affirm the judge's decision to dismiss, as premature, the employee's § 34A claim.¹

¹ In light of the facts found by the judge, infra, we assume that the insurer commenced payment of §34A benefits on October 22, 1999, the date Slater's §34 benefits became exhausted. The issue raised by Slater in this appeal did not become moot after that date, because entitlement to §34A benefits is a prerequisite to the collection of §34B cost of living benefits and the weekly benefit rate under §34A is higher than under §34.