From the Desk of Jason M. Carlton October 2019
Temporary Awards After 130 Weeks May Now Be Permanent –
Keep An Eye Out For Post-4/10/17 Claims
Practice Tip: Any claim having a date of injury on or after April 10, 2017 should be flagged as a case where an employer/carrier will be entitled to presumption that they receive a credit for periods of temporary disability that exceed 2.5 years (130 weeks) from the date of injury against the durational cap on benefits payable for a permanent partial disability.
In 2017, the New York State legislature amended Section 15(3)(w) of the Workers’ Compensation Law. The amendment provided that for cases with a date of injury on and after April 10, 2017, where an employer/carrier is paying temporary lost wage replacement benefits beyond 130 weeks from the date of injury or disablement, all weeks of compensation that are paid thereafter “shall be considered to be benefit weeks for purposes of this section, with the carrier or employer receiving credit for all such subsequent weeks against the amount of maximum benefit weeks when permanent partial disability under this section is determined.” Thus, a finding of MMI is not required before the commencement of the PPD cap.
However, the law provided a “safety valve.” When a claimant demonstrates to the Board that they have not reached MMI and the Law Judge determines that the claimant has not reached MMI, the employer will not receive this credit. This is obviously a major loophole, and employers and carriers will continue to be faced with new requests for treatment as a basis for why MMI has not been reached on a case that is 2 ½ years old. We recommend that you be proactive as the first round of these claims reach the point where this credit would apply. Employers and carriers will enjoy a legal presumption that this credit should apply which the claimant can rebut with proof that MMI has not been reached.
Additionally, as the credit begins to take effect, you should look for opportunities to settle claims. The durational caps on permanency benefits have created significant leverage that has allowed employers and carriers to strategically settle many claims at the point of permanency.
This new presumption, that employers/carriers will be entitled to a credit against the maximum benefits payable for permanent partial disability after 130 weeks have elapsed from the date of injury, should create additional leverage that may serve you well in trying to settle claims.
If you have a claim with date of accident 4/10/17 or after that is at or nearing the point where it will be 2 ½ years old and the issue of permanency has not been decided by the Board and would like to consult with our office on how to best utilize this new presumption of a credit against permanent partial disability, or if you would like our office to try and achieve a settlement on your behalf, please contact Jason at 607 723-0600 or any of the attorneys in our office. If you would like a training session on this or any other area of the Workers’ Compensation Law, please do not hesitate to contact our firm.