In 2017, the legislature made a significant amendment to Workers Compensation Law § 15(3)(w), which governs permanent partial disability awards. The amendment allows carriers to take credit against a PPD award for any temporary partial disability benefits paid to a claimant over 130 weeks (2.5 years) after the date of injury. In other words, the capped number of weeks awarded as a PPD is reduced by the number of weeks of TP benefits paid after 130 weeks have passed since the date of injury.
The Board recently began issuing decisions addressing the amended law. From a carrier’s perspective, there are a few details to note. First, the amendment only applies to cases with dates of injury or disablement after April 10, 2017.
The most important detail may be the Board’s holding that the 130 weeks begin running on the date of injury. The credit applies regardless of whether the claimant has actually been paid 130 weeks of indemnity benefits. This could potentially be useful where a claimant is working for some time with no indemnity claim but goes back out of work without having been classified with a PPD.
The amendment contains a “safety valve” provision for claimants. It states that the carrier will not be able to take credit if the claimant is found to have not reached maximum medical improvement. The burden is on the claimant to produce medical evidence to support a finding that he or she has not reached maximum medical improvement. The Board has stated that it will issue more specific guidance regarding the “safety valve” in the near future.
In PPD cases where the claimant is out of work, it will still be in a carrier’s best interest to move the case towards a finding of MMI and permanency as soon as possible. That will get the caps on indemnity benefits in place. However, we do anticipate that the credit will prove useful in many individual cases that have followed the typical permanency track for various reasons. The potential credit is something that carriers should be mindful of and keep an eye out for on PPD cases.
