Attorney John Kennedy

Workers' Compensation and Employment Law

Adding Injuries Does Not Sink the Impairment Rating.

Bankrupt Claimant Spends Set Aside Money on New Truck.

And the Bankruptcy Judge let him get away with it! We have all suspected for a while now that Claimants are not actually using Medicare Set Aside money to pay for medical bills. Well, on Monday, our suspicions were confirmed. A Federal Bankruptcy Judge ruled that an injured worker who used set aside money to buy a Ford pickup and some property on the side was actually protected by the federal bankruptcy laws. The details: claimant broke his hip on the job, comp case settled for $225,000 and about $70,000 was put into a Medicare set-aside account. It is pretty clear that the claimant self-administered this account because he bought a truck and some land with the set-aside money. He filed for bankruptcy (Chapter 7) and he asked the bankruptcy Judge to shield the truck and the land from the bankruptcy case. (In a Chapter 7 bankruptcy you have to sell all of your assets and pay off your creditors).

The Judge allowed him to keep his truck and the land! And, the Judge said even though he spent the set aside money, it was there to arguably pay his future medical bills!

So, according to this case, an injured worker can settle his comp case, spend the set aside money on a new truck and some land, and then file for bankruptcy and get to keep the truck and the land. Not sure if CMS/Medicare will now be doing anything in this case, but that would be interesting if they did.

You can read all the gory details here. The names are deleted to protect the debtor.

Once again, the possibility of future surgery does not negate MMI.

The Commonwealth Court has once again, for about the tenth time now, ruled that the possibility of a future surgery somewhere down the road does not mean that the claimant is not at maximum medical improvement.

In other words, just because the claimant might have a surgery in the future does not prevent the finding that the claimant is at maximum medical improvement.

The Employer can still obtain an impairment rating, and can still prove that the claimant is at MMI, even if the claimant says she is going to get some surgery in the future.

When will the claimant lawyers finally give up on this argument?

Nicole Neff v. Workers’ Compensation Appeal Board (Pennsylvania Game Commission), No. 130 C.D. 2014, Commonwealth Court of Pennsylvania. Filed: January 8, 2015.

Revisions to Workers’ Compensation Rules are Now Effective

Revisions to the rules that all lawyers and claimants must use when practicing before any Workers Compensation Judge, and when filing appeals to the Appeal Board are now published. The final revisions are located here.

Pa. Comp Bureau has an Excellent FAQ page.

The Pennsylvania Workers Compensation Automation and Integration System, affectionately knows as WCAIS, has developed a very detailed Frequently Asked Questions page.

You can access it here:


Clark Summit State Hospital Employees Workers’ Compensation

If you are an employee of the Clark Summit State Hospital then you get special protection under the Pa. Workers’ Compensation laws. There is a special law known as “Act 534” and it protects employees injured by people committed to the Clark Summit State mental hospital.

Act 534 says that any employee of a State mental hospital or Youth Development Center under the Department of Public Welfare, who is injured on the job by someone confined to the institution or by any person who has been committed to such institution shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability from the injury no longer prevents his or her return as an employee of such department.

The difference with Act 534 is that you are paid a salary equal to that earned at the time of your injury.

This is different from “regular” workers compensation in Pennsylvania. Most employees get only about 66 percent of their wages in workers compensation. But under Act 534, you are allowed to be paid your full salary if you are injured by someone committed to the state hospital.

Act 534 benefits are also handled by different Judges usually with the Bureau of Hearings and Appeals in Harrisburg, not the Workers Compensation Judges that handle “typical” work-related injuries.

All state mental hospital employees should be aware of this special law if they are injured on the job.


How Much Workers Compensation Will I Get?

This is a complicated question but basically you need to determine your average weekly wage. In most cases, your average weekly wage is found by looking at your total wages for the 12 months before your work injury. Your total wages for the 12 months before your work injury is then split into four quarters. You then add up each quarter. Take the three highest quarters of wages, add them together,  and divide by three to get an average. In most cases that will be your average weekly wage. Of course, there are always exceptions to the rule. And this is not how much workers compensation you will be paid. You need to then look at a chart that is from the Bureau of Workers’ Compensation. Most of the time (but not always) your weekly workers compensation benefits will be two-thirds (or about 66 percent) of your pre-injury, average weekly wage. There are a lot of cases that discuss how the average weekly wage is calculated.

Sitting Around Kills Your Brain

The New York Times posted an interesting article today about how a sedentary life changes your brain. You can find the article here.

I have seen so many people on workers compensation in Pennsylvania literally lose their minds after they are on workers comp wage loss benefits for too long. Especially men. They do not seem to be able to mentally handle being out of work for long periods of time. In addition to dealing with the stress of their work injury (treatment, doctors, lawyers hearings etc) they are also dealing with the loss of their ability to put food on the table. Women appear to be able to handle this better than men, but in my opinion, both sexes have a very hard time mentally and physically being out of work for extended periods and being physically inactive.

Something to think about when you are injured in a work-related accident in Pennsylvania.

Notice of Ability to Return to Work Explained.

This is a video that I did a while back explaining a Notice of Ability to Return to Work under the Pennsylvania workers’ compensation system. Hope you enjoy this video and keep in mind this applies to workers’ compensation claims in Pennsylvania.

Notice of Ability to Return to Work

Rules of Civil Procedure Not Applicable to Workers’ Comp Cases

The Pa. Commonwealth Court (our intermediary court here in Pennsylvania) has decided that the Rules of Civil Procedure do not apply to workers’ compensation cases. I know that some workers compensation lawyers have a chip on their collective shoulders the size of the Workers Compensation Act already, and we have generally felt inferior to those who practice in the “real” courts of common pleas (even though we do more medical depositions and have more actual court time that most other lawyers), but now our intermediate appellate court tells us not to worry about the Pa. Rules of Civil Procedure.

According to the Court: “Claimant’s reliance on the Rules of Civil Procedure is misplaced because those rules do not govern workers’ compensation proceedings.” I always thought that the Rules of Civil Procedure could be used as some guidance to the lawyers who handle the lowly workers compensation case, but, alas, I was mistaken (silly comp lawyer).

Now, all we need to do is look to the Special Rules of Administrative Practice and Procedure Before Workers’ Compensation Judges, 34 Pa. Code §§131.1-131.122. The system calls them the “Special Rules.” And yes, it is true, attorneys who handle workers compensation cases are special. And we have our special rules that only apply to us and no one else. So rest easy now fellow comp lawyers. We don’t need to worry about those darn complicated Rules of Civil procedure according to the Commonwealth Court.

The decision is found here on Google Scholar:,39&as_vis=1