How long does Workers Compensation litigation take in Pennsylvania

An obvious question asked by many clients is just how long does Workers Compensation litigation take in Pennsylvania. It is a concerning issue for many injured workers because they are either off work with a denied injury or off work and the insurance carrier has accepted the injury, but only for medical purposes, not wage loss. That means that the injured worker is out of work, often times with no alternative sources of income.

In Pennsylvania, a typical time line for workers compensation litigation extend from 8 months to 12 months. Let’s walk through the time line to illustrate why the lengthy time line exists.

First, from the time you file a claim, it may be 15-45 days before a hearing is scheduled.  Depending upon what Judge is assigned to your case, you may or may not testify at the first hearing. I advise my clients on that issue immediately (So there is at minimum 1 month) Continue reading

Drug Tests and Impact on Employment and Workers Compensation

The Pennsylvania Manufacturers Association recently released a report that one in three potential employees either refuse to take a drug pre-screen test or fail a pre-screen drug test.

While in many cases the percentages are not high, the fact that 19% refuse to take drug tests as a condition of employment and 16% fail these tests raise a red flag and a real concern about this issue.

These stats are troubling and disheartening for Pennsylvania.   Drug pre-screen testing is becoming more prevalent because of stat reports like this and because of workplace injuries resulting from illegal drug use while on the job.   Many manufacturers and distribution centers now require drug screening after a work injury occurs.

So what exactly are the ramifications of a positive drug test that involves a work place injury in Pennsylvania?

First, a failed drug test will likely trigger a Notice of Compensation Denial be issued by the Employer, denying workers compensation benefits.  That means in order for an injured employee to get wage loss benefits, he/she must litigate a Claim Petition.  During the litigation, the employee is not being paid any income, if the injury is causing him/her to be out of work  That is significant for most families and injured workers.

Second, if the injury was caused by the illegal drug use, then the claim is barred by law.   It is a ‘but for‘ test.  The rule means that if the injury would not have occurred BUT FOR the intoxication or illegal drug use, then the injured employee is not eligible for workers compensation benefits.   If the injury would have occurred regardless of intoxication or illegal drug use, then the injured employee may be eligible for workers compensation benefits.

Other impacts . . .

What if the employee fails a drug test and is fired for that failed drug test?  If the employer has a Zero Tolerance policy and the employee subsequently fails a drug test and is fired, the right to wage loss benefits is affected.   You can actually win a Claim Petition, but receive no wage loss benefits.  Lets look at an example.  An employee is injured on the job and fails a drug test at the hospital.  The employer subsequently terminates the employee, in accordance with company policy, for the failed drug test. During litigation of the Claim Petition for benefits, the insurance carrier’s doctor testifies that despite the work injury, the employee could work light duty, such as, lifting up to ten pounds.  Employer then puts on a fact witness from Human Resources that testifies that light duty would have been available to the employee, BUT FOR the termination of employment for drug use.  If the Workers Compensation Judge finds the insurance carrier’s doctor to be credible, then Claim Petition would be granted, but an immediate Suspension of benefits would occur.  Why?  Because the Judge found that the Employee could perform light duty, that light duty was available, but the employee could not perform light duty because he/she was fired.  Essentially, the disability from work is not related to the injury, but to the termination from employment.

The same goes for receipt of wage loss benefits.  If you are receiving wage loss benefits and your Doctor or the insurance carrier doctor finds you can perform light duty, and the Employer offers you light duty, but you can’t do light duty because your job was terminated, a Judge can suspend benefits immediately because the disability is no longer work related, but related to termination of employment.

Injured at work and layoff in Pennsylvania

Often times, I get calls from injured workers, who return to work, and are then subsequently laid off due to slow down or job elimination.  It is a frequent occurrence.    The questions always revolves around the workers compensation issue and entitlement to benefits.

The more typical scenario here involves a plant or warehouse and a typical slowdown period where shifts are laid off.  Often, employers will instruct injured workers to apply for unemployment compensation benefits during the layoff period.  You may indeed need the unemployment if the employer refuses to reinstate you to full, temporary total disability benefits, which you would be entitled to, under the Act.

The key to this rule revolves around what type of work you were doing when laid off.  If you returned to work under restricted or light duty, and were laid off while working in that capacity, you are entitled to reinstatement to full wage loss benefits.  If you return to work to your pre-injury, regular job, but are still having effects of injury and treating, you may be entitled to wage loss benefits.

If your employer has informed you that they are not going to pay your Workers’ Compensation benefits, you will need to file a “Petition to Reinstate” benefits.   Simply call my office at 1-877-632-4656 or email me at to start that process.  You will need an experienced workers compensation attorney to litigate the Petition.

In the meantime, you are most likely eligible for Unemployment Compensation benefits due to the lay-off from work. Your Unemployment Compensation benefits will eventually be credited toward any Workers’ Compensation Benefits you may receive as a result of your Petition to Reinstate, and the success of that Petition.  However, you are most likely to begin receiving Unemployment Compensation benefits quicker in order to help you with your current loss of income.

Call Mooney & Associates today to protect your workers compensation rights.  We represent injured workers in the following areas and those areas surrounding Greencastle, Chambersburg, Carlisle, Shippensburg, Gettysburg, Dillsburg, Hanover, York, and Harrisburg areas.

Pennsylvania Workers’ Compensation Benefits and Taxation

I often get asked the important question regarding whether workers’ compensation benefits, specifically a lump sum settlement, is taxable income?  

The quick answer is — NO.  Workers compensation benefits are not a taxable event.  That applies to not just your weekly benefits checks, but also if you settle your case for a lump sum amount.  That also applies to settlements in general, irregardless of whether they are indemnity only or a full compromise and release settlement.  Here is the link to the IRS publication regarding workers compensation and taxes.  
However, if you are on or will be on social security disability, there is an offset that applies to as workers compensation settlement.  The net amount that you receive (your settlement amount minus the attorney fees and any set aside future medical expenses) should be pro-rated over the course of your remaining life expectancy because it will limit the potential post-settlement tax consequences to you as a result of your settlement as it relates to social security disability.  If you are not on social security disability and do not plan on going on to the program, then no concern to you.  If you are on SSD or plan to be on SSD, you should immediately contact us at Mooney & Associates to discuss the impact settlement has on your social security benefits.  
Now that we have discussed those two important items, it is critical that you speak with a workers’ compensation attorney before settling your case with your workers comp insurance carrier.  You should also consult with an attorney from Mooney & Associates to determine not only if you are getting fair value for your work injury, but if settlement is even in your best interest.  Call us today at 717-632-4656 or 1-877-632-4656 to set up a FREE consultation to discuss your potential settlement.  Remember, once you settle and the Judge approves your settlement, there is no going back.  Protect your rights and best interests!  

Amounts you receive as workers’ compensation for an occupational sickness or injury are fully exempt from tax if they are paid under a workers’ compensation act or a statute in the nature of a workers’ compensation act. The exemption also applies to your survivors.  . . . If part of your workers’ compensation reduces your social security or equivalent railroad retirement benefits received, that part is considered social security (or equivalent railroad retirement) benefits and may be taxable. For a discussion of the taxability of these benefits, see Other Income under Miscellaneous Income, later.

New Pennsylvania Workers Compensation wage rates

Effective January 1, 2014, the Pennsylvania Department of Labor and Industry released the new compensation rates for injured workers who are out of work because of the work injury.  Each year the Department adjusts compensation rates.  Here are the new rates.  These rates only apply if you were actually injured in 2014.

If your average weekly wage is $517.77 or less, then you are entitled to 90% of your average weekly wage as wage loss benefits.  The maximum increase to $517.77 from $509.43 in 2013.

If your average weekly wage is between $517.78 and $699.00, then your weekly compensation rate will be $466.00.  That is an increase from $458.50 in 2013.

If your average weekly wage is between $699.01 and $1398/.00, then you are entitled to 66 2/3 your average weekly wage.  The maximum an injured worker can receive in 2014 is $932.00 per week, up from $917.00 in 2013.

Often, insurance carriers and employers miscalculate your average weekly wage.  At times they will not include overtime or concurrent wages, meaning income you had from a part time job.  Your workers’ compensation rights center around your average weekly wage.  It is imperative that the average weekly wage be correct.  If you have any questions or would like a FREE consultation to discuss your case, contact Mooney & Associates attorney Mark Buterbaugh at 1-877-632-4656.

Attorney Buterbaugh represents injured workers in Adams, Cumberland, Dauphin, Franklin, Lancaster, Perry, and York Counties.

PA Workers Comp: Average Weekly Wage adjustments for 2013

The Pennsylvania Department of Labor and Industry in early January published the new average weekly wage rates for 2013.  What is average weekly wage?  The average weekly wage determination is one of the most important aspects of your workers’ compensation case because it dictates what your actual compensation rate will be if you are out of work because of a work injury.

Indemnity benefits, otherwise known as wage loss benefits, are payable when you are out of work or when you are working light duty and making less than your pre-injury wages. The amount of indemnity benefits an injured worker receives is generally calculated by multiplying the preinjury average weekly wage of the worker by two-thirds.  If your earnings are below $509.43 per week, then your indemnity benefits generally can be calculated at 90% of your preinjury average weekly wage, with minimums and maximums established by law.  It is also important to note that if you are injured at one job and that injury also prevents you from working your second job then you may be entitled to add the wages of the second job to the wages of the first job to calculate your average weekly wage.  It is important to let us know if you work a second job.

Your average weekly wage is determined by calculating your wages over your four periods of 13 weeks.  You eliminate the lowest of the four periods, add together the other three periods, then divide by 3. There are other nuances in determining your average weekly wage if you worked less than four quarters or less than a quarter.

Here is the 2013 statewide average weekly wage:

1.  Wages between $687.76 per week and $1,375.50 per week are determined by multiplying wages by 66 2/3%.  Maximum average weekly wage is $917.00.

2.  Wages between $509.44 and $687.75 per week yield an average weekly wage of $458.50.

3.  Wages under $509.43 per week are determined at 90% of weekly pay.

If you think your average weekly wage may have been calculated incorrectly, we urge you to give us a call.  If you are uncertain, give us a call.  The average weekly wage determination is critical because your indemnity benefits are base don your calculated average weekly wage.  Call us today at 717-632-4656 or 1-877-632-4656.  Our offices serve injured workers in the following counties:  Adams, Cumberland, Dauphin, Franklin, Fulton, Perry,and York.