PRACTICE TIP: If the credit under WCL Section 15 (3) (w) is not addressed at the time a permanency determination is made, a prompt RFA-2 filing should be made seeking a determination as to the credit under WCL 15 Section (3) (w).
For accidental injuries or occupational diseases occurring on or after 4/10/2017 the carrier is entitled to have the indemnity awards paid beyond 130 weeks of the date of accident credited against the statutory cap on permanent partial disability awards. The carrier’s entitlement to the credit is set forth at WCL 15 Section (3) (w).
In the case of Queens County Carting, WCB G2360794 (6/4/2024) the claimant was classified by a WCLJ with a permanent partial disability on 3/2/2023. Thereafter on 3/24/2023 the carrier filed a request for further action seeking a calculation as to the carrier’s credit pursuant to WCL 15 (3) (w). The claimant argued that the carrier’s credit had been waived as it was not addressed at the time that permanency was ruled upon. The WCLJ agreed and the carrier appealed.
In the Board Panel Decision, the ruling below was rescinded to the extent that it found that the carrier waived its entitlement to a credit under WCL Section 15 (3) (w). The Board Panel held that the carrier’s right to a credit is set forth in statutory language and is not subject to a waiver. (The Board Panel did, however, conclude that the claimant was entitled to the “safety valve” provisions such that the credit did not apply.) For a similar result see, Pinnacle Industries, WCB G2028929 (8/1/2024).
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
