If a workers compensation petitioner suffered injuries during the course of his employment he may, upon presentation of appropriate proofs, be entitled to a permanent partial total award. Then, if the petitioner's condition continues to deteriorate, as it relates to the same date of incident, he may have a right to file an Application for Modification and,  in some cases, upon appropriate presentation of qualified proof, benefit from a totality award.

 

In the past, the carrier that was held responsible to pay benefits pursuant to a permanent partial total  award flowing from a date of accident would be entitled to secure a dollar for dollar credit if the petitioner's condition continued to deteriorate and if the petitioner was ultimately deemed to be totally disabled as a result that same date of incident.  

 

Then, of late, the petitioner's Bar began to successfully argue that the character of benefits paid pursuant to a permanent partial total award were different than the character of benefits paid pursuant to a total award and, hence, the carrier that paid benefits pursuant to one date of injury would not be entitled to a dollar for dollar credit from a subsequent totality award wherein the petitioner's condition deteriorated as a result of that same incident ultimately entitling him to a totality award.  This has been a hotly contested issue for some time.

 

Judge Calderone has now clarified the issue within his Directive dated 11/21/13 wherein he confirms that a carrier making payment in response to a permanent partial total award the carrier does have a right to secure a dollar for dollar credit from an ultimate totality award. 

Read Director and Chief Judge Calderon's memorandum here. For Workers' Compensation questions contact Ken Sylvester, Esq. 856.857.5524 or ksylvester@cooperlevenson.com.