Friday, October 20, 2017

Medical Source Statements

Medical Source Statements
By Attorney Nicholas Wearne
Snow, Carpio & Weekley


As important as it is to have a good lawyer, it is equally as important to your social security case to have a supportive doctor.  To qualify for social security benefits you must prove that you are unable to work or, in some cases, that you can only do light work.  While there is an occasional outlier, the only way I have seen people successfully prove this, is with supporting medical opinion. 

One of the first things I do when a person comes in is give them a Medical Source Statement form.  It is a form that asks your doctors what your restrictions are.  It specifically asks about sitting and standing limitations, lifting limitations, percentage of time you will be off task, number of days you will be absent from work in a given month, etc.  These forms are the primary evidence I use at hearing in order show that someone is disabled.  Your word alone, albeit convincing, is usually not sufficient to convince the judge that you should receive benefits. 

Whether you represent yourself or have an attorney represent you I recommend having your doctor fill out one of these forms.  The more specialized your doctor is, the more convincing the restrictions will be.  If they are not willing to fill out the form, try finding a doctor who will, or see if they are willing to write a letter that states your restrictions in their own words.  Some doctors do not like being limited to a form.  Versions of this form may be found online.  

If you believe you would qualify for social security disability and need a medical source statement form, feel free to contact our office for a free consultation.



For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.




Friday, October 13, 2017

THE EXCLUSIVE REMEDY AND THE YARNELL HILL FIRE

THE EXCLUSIVE REMEDY AND 
THE YARNELL HILL FIRE
By Attorney Dennis Kurth
Snow, Carpio & Weekley

The Yarnell Hill Fire was a tragic event that resulted in the deaths of nineteen “hotshot” firefighters on June 30, 2013.  Speculation grew about who, if anyone, was responsible for the hotshots having left a position of relative safety above the fire to move to one of extreme peril in the path of the fire.
The hotshots were direct employees of the Prescott Fire Department (City of Prescott) and their survivors were entitled to workers’ compensation benefits from the City.  They worked in the surrounding wilderness area, however, under an intergovernmental agreement (“IGA”) with the State of Arizona Forestry Division.

Several families of the hotshot victims sued the State of Arizona and State Forestry Division as third-parties whose negligence caused their deaths.  Their theory was that a couple of supervisors directed by the Forestry Division had left their posts and neglected their duty to protect the hotshots.

The State of Arizona and the State Forestry Division argued that the Plaintiffs’ lawsuits were barred by the “exclusive remedy” provision of the Arizona workers’ compensation law.  That section of the statute, A.R.S. §23-1022(A), one of the philosophical pillars of the workers’ compensation law, gives employers who procure workers’ compensation insurance immunity from a civil lawsuit by an injured worker or a worker’s family in the event of the workers’ death.  Workers’ compensation is said to be the “exclusive remedy” against the employer.

The Court of Appeals, in upholding the Superior Court’s dismissal of the Plaintiffs’ lawsuits in McKee v. State, et. al., (Ct. App. 12/30/16), held that the hotshots, because of the IGA, were employees of both the City of Prescott and the State Forestry Division and therefore were barred from suing the State of Arizona and the State Forestry Division by the exclusive remedy statute.
Plaintiffs also argued the sole statutory exception to the exclusive remedy rule, that the State’s actions rose to the level of “willful misconduct” (A.R.S. §23-1022 (A)(B)) as a basis for circumventing the exclusive remedy statute.  Reviewing the statute and case law the Court concluded that the willful misconduct exception required that the Plaintiffs prove that the State had acted with the deliberate intention of harming the hotshots and the Plaintiffs had not even alleged that.  Even gross negligence, according to case law, does not rise to the level of willful intent.  Consequently, Plaintiffs had no cause of action under the exclusive remedy “willful misconduct” exception either.

The McKee case illustrates the continuing strength of the exclusive remedy statute.  Even in the face of a horrific event where the workers’ compensation remedy only provided burial expenses to the mother of the unmarried and childless hotshot in McKee, the law cannot be circumvented easily.  All but three of the Plaintiffs’ cases settled for very modest amounts (about $50,000) before the remaining three went to the Court of Appeals.

Indeed in Arizona jurisprudence, there has been only one case involving the successful application of the willful misconduct exception and that was a case in which the employer shot the employee to death in his office.  (See Bonner v. Minico (1988).  Even in Bonner the result was uncertain because the employer, in the criminal case, argued that temporary insanity deprived him of the ability to form the legal intent to murder.  In Bonner, the Arizona Supreme Court held that the employer wanted to eliminate the decedent and knew that pointing the gun at her and pulling the trigger might kill her and that was sufficient to hold the employer liable in a civil wrongful death action.

Perhaps long in the future more information will appear as to the cause of the hotshots’ death.  As of now, however, only one hotshot survived and he has not yet spoken on the record as to whose mistake might have led to the disaster.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Friday, October 6, 2017

Social Security Disability and Marijuana

Social Security Disability and Marijuana
By Attorney Nicholas Wearne
Snow, Carpio & Weekley


A question some of my clients have asked me is how smoking marijuana could potentially affect their application for social security disability benefits.  I wish I had a hard and fast answer but unfortunately the law is unclear.  When deciding whether you should qualify for benefits an administrative law judge must take into consideration whether the use of drugs and/or alcohol is a contributing factor to why you are disabled.  They must determine whether your condition would continue to exist if you were not consuming drugs or alcohol.  If drugs and alcohol are a contributing factor could lead to a denial.

I recommend that all my clients remain off any drugs that are not prescribed by a doctor including alcohol, nicotine, and marijuana.  Better to be safe than sorry as far as recreational drug use is concerned.  However, if marijuana has been medically prescribed, the law becomes less clear.  In many states medical marijuana use has been legalized even though all use of marijuana is illegal under federal law.  I have seen it used for treating progressive diseases as well as terminal ones like an advanced cancer.

A social security applicant who is considering using medical marijuana should take several things into consideration although my advice is ultimately proceed if you are comfortable with the risk. First, consider the fact that under federal law marijuana is illegal and social security disability is a federal program.  Second, remember that every social security judge is different.  They each have their own opinions and biases.  If the judge does not believe that the medical use of marijuana should be legal it may affect the judge’s decision.  Some judges are fine with it, some aren’t.  Finally, if you are going to use medical marijuana consider ways that you can show its use is for legitimate medical purposes.  For example, make sure you have a medical marijuana card, that you get it from a dispensary, and that its consumption is being prescribed by a doctor. Some doctors are even willing to write letters explaining why the use of marijuana is appropriate.  Make sure that all your doctors know about it.  Many pain management doctors for example will not allow you to be on both narcotics and marijuana.  If you are on both marijuana and narcotics and your doctor gets you in trouble for it, it could really hurt your credibility and ultimately whether you are approved for benefits.   In, sum proceed carefully and at your own risk.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.


Friday, September 29, 2017

Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law

Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law
By Partner/Attorney Brian Weekley
Snow, Carpio & Weekley


These days, there are many firms that advertise as handling Arizona Workers' Compensation claims. Any lawyer, or law firm, can make these claims. Many firms that specialize in Personal Injury advertise for and take workers' compensation cases. Why should you choose a specialty firm over one of the Personal injury firms?

First, workers' compensation law is a completely different animal than personal injury law. Workers' Comp is a no fault system where the injured worker is paid a percentage of his wage loss for temporary and permanent benefits. All of the medical expenses are covered, with no copays or deductibles.

Personal Injury law is structured as a system where medical bills are gathered, fault is assessed and debated, and demand is made for damages. Most cases are settled with a full release of liability.

Workers' Comp, on the other hand, is designed for long term care of the injured worker. Injured workers should be extremely careful before " settling. " (Actually, the exact term is Compromise and Settlement, and represents a temporary agreement as  to an injured workers' entitlement to benefits, said agreement subject to future modification by reopening, rearrangement and motions).
Settlement amounts act as a credit against future benefits.

Generally, a personal injury firm's model is to settle cases and move on. You don't want this model if you want to maximize the long term benefit of your workers' comp claim. What you do want is protection in the future. We can resolve claims and maintain medical care into the future. This is of benefit to many clients, and is part of our philosophy of " having our client's backs" for the duration of their claim.

Another factor is bookkeeping. When you retain an attorney, all documents , checks and communications are directed to the law firm. The checks must be placed in trust and disbursed to the injured worker. Our firm charges a minimal fee on ongoing benefits. Many PI firms and competitors charge as much as 25% of every single check received on behalf of the injured worker. This often results in overcharging. Beware.

The State Bar of Arizona certifies certain specialties, and workers compensation is one of those specialties. You pay no more for a firm with certified specialists, and in many cases ( see above) the injured worker pays less. Our firm has two specialists, including myself. Many PI firms have no specialists and saddle the client with a sometimes very inexperienced attorney. Experience matters, especially in a system where medical evidence is so vital.

An injured workers' unresolved legal issues ultimately go before a Judge at the Industrial Commission of Arizona. Having an attorney who has done hundreds and thousands of these hearings makes a difference.

I hope that this brief post is helpful to injured workers and their loved ones. Contact us any time for a free consultation. Thank you.

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.




Friday, September 22, 2017

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS
By Attorney Dennis Kurth
Snow, Carpio & Weekley

The Industrial Commission was given jurisdiction to approve settlements of workers’ compensation cases by virtue of a Supreme Court case in 1986[1] followed by the adoption in 1987 of a set of administrative rules for ALJ’s to follow in approving settlement agreements.

A bona fide dispute and a written settlement agreement signed by the parties with the claimant certifying that they have read and understand the terms of the settlement agreement and were not signing under duress or coercion, are required.  (ICA policies and procedures as published in the ICA Manual, however, do not have the force and effect of the Industrial Commission Rules of Procedure or the workers’ compensation statute).

The question of whether a purely verbal agreement to settle a workers’ compensation case is enforceable against an insurance carrier arose in the context of a claimant who died in a car crash while on his way to his attorney’s office to sign a settlement agreement.[2] The claimant’s heirs sought to enforce the verbal agreement but the carrier, of course, claimed that it could not be enforced because the written agreement had not been signed.

The Industrial Commission, in Tabler, refused to enforce the verbal settlement agreement and the claimant’s heirs appealed.  The Court of Appeals held that a verbal agreement could be enforceable if the parties intended to be bound by the verbal agreement and set aside the Industrial Commission’s award.  The case was remanded to the Industrial Commission to hold hearings to determine the intent of the parties.  In an important footnote, however, the Court held that it was not addressing the issue of whether a verbal settlement could be enforced against an injured worker. 

The case was then settled between the heirs and the insurance carrier.  Since then no changes have been made to the statue or the Industrial Commission rules regarding settlements.  Still, except for the Industrial Commission policies and procedures, no written agreement is required.

Recently, in a memo decision, the Court of Appeals held that an oral settlement could be enforced against the claimant who had simply changed her mind about settling her case and refused to sign the written settlement agreement.[3] In the True Value case, the claimant, whose attorney had withdrawn when she changed her mind about the settlement, was unrepresented in the Court of Appeals and did not even file an answering brief, thereby confessing error.  In addition, the Court felt that, “on this record”, the verbal agreement should be enforced.

The True Value case, even though not a legal precedent, creates a dilemma for claimants, represented or unrepresented. While the carriers and their attorneys, in euphoria over the ruling, will seek to enforce verbal settlements, claimants and their attorneys must now be extremely cautious in settlement negotiations to anticipate every eventuality that could affect their decision as they may not have the luxury of reconsidering their decision before the settlement documents arrive.

True Value will probably not be the last word in the enforce-ability of verbal settlements against claimants and should not be taken as such.  It would be very bad policy for the Industrial Commission to follow for many reasons including that facts can change quickly and injured workers should not be held to verbal agreements under the workers’ compensation law, which is solely designed to help them, until they have read and understood the language of the settlement agreement. 

All claimants contemplating settling their cases should seek the advice of experienced counsel first.  For claimants’ attorneys, the best policy is to advise the carrier or their attorney that they do not intend to be bound by the settlement until the C & S is fully executed and the claimant certifies that they understand all the terms.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.







[1] Safeway Stores v. Industrial Commission, 152 Ariz. 42, 730 P.2d 219 (1986).
[2] Tabler v. Industrial Commission, 202 Ariz. 578 (App. 2002).
[3] True Value Company v. Industrial Commission, (Ct. App. 10/4/16).

Friday, September 15, 2017

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION
By Attorney Dennis Kurth
Snow, Carpio & Weekley

Among workers’ compensation practitioners, the ALJ assigned to one’s case has always been an important factor in the attorney’s strategy and expectations. Over time, not even a long time, most ALJ’s tend, fairly or not, to get labeled as either friendly to one side or the other or prone to resolve certain issues by compromise rather than strictly following the evidence or law.  The administrative process for obtaining a different ALJ was archaic, awkward and grossly out of sync with the civil system.

A legislative change to the workers’ compensation statute in 2016, however, made a party’s entitlement to one change of ALJ a matter of right, aligning it more closely to the procedure in the civil system.

Before last year’s change, in order to get a change of ALJ, a party had to file, within thirty days of the ALJ assignment, an affidavit alleging that the assigned ALJ had a personal conflict of interest or was actually biased and prejudiced against them.  That  usually required the application of a bit of fiction which strained ethical boundaries as well as created an awkward dynamic with the particular ALJ that might, and often did, require consecutive affidavits for every case assigned to that particular ALJ or run the risk of retribution in a later case.

Although the fact that a particular ALJ had a propensity for ruling in favor of claimants or carriers would never constitute proof of actual bias and prejudice, the Chief ALJ had always considered the filing of the affidavit to be a sufficient basis to grant a change of ALJ anyway.

When finally the affidavit process became a weapon for defense attorneys to disqualify ALJ’s who wouldn’t grant continuances on hearings or other accommodations, the process was abused and the Chief ALJ had had enough.

In the new statute, each party is entitled to one change of ALJ as a matter of right if the notice of change is filed within thirty (30) days of the issuance of the notice of hearing.   (See A.R.S. §23-941(I)).  Additionally a party can still file an affidavit for change of ALJ for cause based on a listed conflict of interest or for bias and prejudice even after exercising their automatic strike. They will, however, have to be prepared to prove that the ALJ is conflicted or actually biased and prejudiced or the change of ALJ will not be granted.

The new procedure for changing ALJs is a welcome development that eliminates the fiction of alleging that an ALJ is actually biased and prejudiced and hopefully will smooth relations between workers’ compensation attorneys and ALJs in the long run.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Friday, September 8, 2017

Social Security Disability and Early Onset of Alzheimer's Disease

Social Security Disability and Early Onset of Alzheimer's Disease
By Attorney Nicholas Wearne
Snow, Carpio & Weekley


There are an estimated 5.4 million in United States living with Alzheimer's disease.  The disease is associated with old age but there are a unfortunate few who are affected by the disease before the age of 65 during their prime working years.  Those who are affected by the disease before age 65 are diagnosed with Early Onset of Alzheimer's Disease.  The disease is terminal and it cannot be stopped or cured.  While at first a person may be able to work the disease will eventually take over affecting a person’s work life as well as their personal lives.

Normally, to apply for social security disability, you must got through a rigorous application process and must prove that you are unable to work.  Proving that you are unable to work involves getting doctors notes stating what your work restrictions are, hearings, and what can often be a vicious back and forth with the Social Security Administration.  Fortunately for those with Early Onset of Alzheimer's Disease there is a compassionate allowances list.  This is a list of serious, terminal, and rare diseases created by the Social Security Administration and it includes Early Onset of Alzheimer's Disease.  If you have a disease on the list of compassionate allowances you automatically qualify for social security benefits by law.  For a complete list of the compassionate allowances check out the social security website.  https://www.ssa.gov/compassionateallowances/conditions.htm


If you or a love one have Early Onset of Alzheimer's Disease and yet are still being denied benefits by the Social Security Administration or if you have any condition on the compassionate allowances list and would like help with your application, please contact Snow, Carpio, and Weekley for a free consultation.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.