Hamberger & Weiss LLP


Practice Tips Regarding the 130 Week PPD Credit/MMI "Safety Valve" Provision

In 2017 the workers’ compensation law was amended to allow carriers to take credit for temporary disability payments paid to a claimant beyond 130 weeks (2.5 years) from the date of accident or disablement against that claimant’s maximum benefit weeks from a permanent partial disability award under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. However, the credit only applies if there was no intervening finding that the claimant was not at maximum medical improvement (“MMI”). Now that we are well past 130 weeks from April 9, 2017, this provision has become increasingly relevant and we have encountered a few different issues we want our clients to be aware of. 

1)         The amendment applies as a matter of law:

Our firm maintains, and the Board thus far seems to agree, that the amendment applies as a matter of law.  In other words, there is no need for the carrier to specifically note its entitlement to the credit at the time classification is decided. We have seen some cases where the claimant's bar disputes this and alleges that the existence of a credit must have been raised at the time of permanency. We are unaware of any precedent in support of this position. Should you receive any ruling from the Board finding the carrier is not entitled to a credit against the cap on the basis that it was not raised at permanency, please let us know.   

2)         All weeks in which payments were made after 130 weeks from the date of accident/disablement count towards the credit

We have heard some argument that the carrier is only entitled to a credit after 130 weeks of payments have been made, rather than the credit applying for any benefits paid after 130 weeks have passed from the date of injury. We disagree with this argument. The statute states that whenever the carrier has provided compensation beyond 130 weeks from the date of accident, it gets a credit for those payment weeks. It says nothing about an obligation to have paid 130 weeks of compensation.  Furthermore, Board Subject Number 046-936 says “The reforms … provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks).”  This language makes no claim that 130 weeks of benefits must be paid for the credit to apply. 

Accordingly, should you receive any decision where a WCLJ finds you are not entitled to credit weeks on the basis that they did not begin to accrue until 130 weeks of temporary benefits had been paid, please let us know. 

3)         Avoid MMI litigation when the outcome is uncertain

To paraphrase Sun-Tzu, “never enter into any battle you have not already won.” As noted above, the credit for temporary benefits disappears if there is a no MMI determination before permanency is ultimately found. Thankfully, this provision is worded narrowly. For the credit to be forfeit, 1) permanency must be at issue; 2) the claimant must have produced medical evidence he is not at MMI; 3) the carrier must have had the chance to secure an opinion on the question; and 4) the Board must have decided that the claimant is not at MMI.  

Therefore, it is wise to avoid litigating the issue if it does not seem likely the carrier will prevail.  Better to accept the opinion of a claimant’s doctor that he is not at MMI for the time being, secure in the knowledge that the benefits you are paying now will ultimately act as a credit, rather than litigate and lose not only the issue of MMI, but the availability of the credit. In cases where the Board sets the matter down for permanency on its own motion, and there is an opinion from claimant's doctor that he is not at MMI, it may be prudent to consider accepting that opinion, unless there is some obvious factual or legal deficiency.  We can then argue that the credit was not forfeit on the basis that none of the latter three events occurred.

We anticipate that the claimant's bar may ultimately argue for such cases to be disqualified from the credit, but we are optimistic about our position given the language of the statute.

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