When Does The 130-Week Cap Apply?

In 2017, the Workers’ Compensation Board issued amendments to Workers’ Compensation Law (WCL) §15(3)(w). According to the amendment, insurance carriers may assert a credit against the amount of weeks a claimant is awarded for a permanent partial disability finding (LWEC finding). The credit is limited to periods of temporary disability benefits paid beyond 2.5 years (130 weeks) from the date of accident. This only applies to cases with a date of disablement following April 9, 2017.

In order to assert the cap, the following requirements must be met:

  1. Is the date of disablement after April 9, 2017?
  2. Have temporary benefits been issued beyond 130-weeks following the date of disablement?
  3. Has the claimant reached Maximum Medical Improvement (MMI) 130 weeks after the date of accident?
  4. Does the safety valve provision apply? (see below).

If all the above requirements are met, the carrier may assert a credit for the weeks of temporary disability benefits paid beyond the 130-week mark, against the permanent partial disability award. The carrier may assert the cap by raising WCL §15(3)(w) at a hearing before a Workers’ Compensation Law Judge.

The Board has also implemented a “safety valve” provision which prevents the carrier from taking credit for temporary benefits paid beyond 130 weeks following the date of accident under certain circumstances. The safety valve provision may be asserted by the claimant (post-130 weeks from the date of accident) if the following apply:

  1. Permanency must be at issue at the time the safety valve is raised.
  2. The claimant must have produced medical evidence that they have not reached MMI.
  3. The carrier must have been afforded the opportunity to obtain an IME on the issue of MMI.
  4. The Board must have found that the claimant has not reached MMI.

If these requirements are met by the claimant, the safety valve is triggered and the carrier will not receive a credit for the temporary benefits paid beyond the 130 weeks following the accident date.

Currently, the issue of whether the safety valve applies is being litigated. The Board has noted that they will “offer further guidance regarding the application of the safety valve in the near future.” As of April 30, 2021, no additional guidance has been issued.

Bedoya & Hussain Law Firm will continue to provide updates regarding the litigation pertaining to Workers’ Compensation Law (WCL) §15(3)(w). However, if you have any case specific or general questions regarding the 130-week credit, please contact our office at (201) 880-9374.