Friday, February 17, 2017

Video Surveillance

Video Surveillance
By Diana Robles, Associate Attorney

Be aware, you might have someone following you ... It is very common in workers compensation cases for an insurance carrier to hire a private investigator to follow and video tape claimants.  This is legal, and further Arizona law permits the carrier to submit into evidence videos obtained of an individual if there is an issue being litigated.  

Of course, this is done to try and catch the individual doing things which they claim that they can not do, as a result of their injury. These videos are often passed along to independent medical examiners hired by the insurance carriers to show how this person behaves when they believe they are not being watched.  

In most instances, the video shows my clients hobbling around, or not doing much of anything.  Unfortunately, although the videographer may follow an individual around for many hours, sometimes over the course of several days, conveniently what is shown in the video is the few minutes where this person did something that seems more difficult to accomplish given their injury and limitations.  While unsettling to know that someone might be watching you, know that these videos are only part of the evidence a judge will hear in your case and are usually harmless.



Friday, February 10, 2017

SOCIAL MEDIA CAUTIONS

SOCIAL MEDIA CAUTIONS
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist

Litigating workers’ compensation cases before the Industrial Commission can often be a highly partisan affair.  Because of the high financial stakes in a serious injury claim, carriers will underwrite expensive investigations and surveillance of workers’ compensation claimants.  The goal is to find contradictions in a claimant’s testimony about the details of the accident, their medical history and their post-injury physical capabilities.  Defense attorneys have successfully used such information to argue that a claimant’s injuries have been exaggerated and that the claimant is dishonest.  Such evidence, in the face of sworn testimony to the contrary, can be fatal to the claimant’s case.

Over the years, carriers’ efforts to “dig up the dirt” on claimants have evolved from simple medical and courthouse record searches and private investigation surveillance to the infiltration of social media accounts on Facebook, Twitter, YouTube and e-mail.  In a recent case that comes to mind, a client who was claiming back injuries and severe depression stemming from a work injury, had to explain photos and statements on his Facebook page that seemed to show him having a good time boating on Lake Pleasant and at a family birthday party.

Consequently, worker’s compensation claimants should be warned to implement certain safeguards in regards to the use of such accounts after an injury has occurred and a claim has been filed especially if the claim has been denied and is in litigation.

First, claimants should not put anything about their injuries in writing, except to the extent necessary to fill out forms for their doctors, without their attorney’s advice and permission.

Second, claimants should not send e-mails regarding their case to anyone except their attorneys and make sure that no other parties are copied on those e-mails.  Claimants should always be aware of what they say or post, especially photographs, on the internet.

Third, if claimants have public accounts with services such as Facebook, Twitter, Myspace, YouTube, etc., those accounts should be made private until the litigation is over and the claim is resolved.
Fourth, no on should be allowed to become a “friend” on an account unless the claimant is absolutely sure that they know that person.


No doubt it can be difficult for an internet-savvy claimant with broad online exposure to observe these guidelines, but it is a discipline that must be self-imposed to preserve personal privacy against carriers’ inquisitiveness and to enhance their chance to win their case.

Friday, February 3, 2017

Witnesses

Witnesses
By X. Alex Carpio, Partner


In most cases there is no need to have lay witnesses unless it involves the issue of compensability. Whether an in jury occurred at work? Are you and employee or independent contractor? Did you report the injury to your supervisor? Did you seek medical attention right away? 

The questions posed always involve co-workers who may have witnessed the injury or know about the injury. The case becomes a he said she said type of case and the judge must determine the credibility of the injured worker versus the other witnesses who will testify. In my experience the co-workers either do not want to cooperate as they fear they may lose their job or fear for other repercussions by the employer. 

Early in my career I would bring in all witnesses and almost always the co-workers that were to support my client's story almost always stated they were not aware of the injury or did not support my client at all. My best witness is my client, the injured worker. Unless I have an affidavit or something signed by a witness stating the facts of the work injury I prefer not to have many lay witnesses as in my experience most of the time the co-workers have been tainted by the employer and now I have 2-5 people testifying against my client.


Unless we have witness statements or relatives that are aware of the work injury it is difficult to predict what the co-worker may or may not say at the hearing despite each witness being under oath to tell the truth and nothing but the truth. 

Friday, January 27, 2017

Motor Vehicle Accident While You Are At Work

Motor Vehicle Accident While You Are At Work
By Diana Robles, Associate Attorney

          What happens if your job requires that you drive somewhere, and you are involved in a motor vehicle accident?  If you are injured, at any time while you are at work you are entitled to workers compensation benefits.  So if your job requires that you drive, and you are involved in an accident then you can usually file a workers compensation claim.  There are of course some exceptions in being able to file a claim, for example the employer or insurance carrier may deny benefits if the employee has so deviated from his expected route that he should not truly be considered to still be working.  Throughout the years, cases have been decided which can give some guidance as to when there is a valid workers compensation claim and when there isn’t, if an employee has deviated from his “work route”.

A workers compensation claim can be brought even if you are the one who caused the accident.  If however, you are not at fault you may be entitled to have both a workers compensation claim open, and a civil personal injury claim against the person who negligently caused the motor vehicle accident.  

Arizona law provides that if you recover anything from that the third party liability claim, the workers compensation carrier may have a right of subrogation against that recovery in that civil matter.  In fact, as the injured person you need to get permission from the workers compensation carrier to come to a settlement with this negligent party.  You also need to be aware that if you are planning on filing a claim against the person who caused that accident, the claim needs to be resolved within the first year.  

Ordinarily, Arizona law given an individual two years from the date of injury to file a claim for negligence against an individual.  In instances, when a person is injured while they are working, they have only one year to settle or file a lawsuit against the negligent party.  The second year, that cause of action is given to the insurance carrier so that if a worker has elected not to pursue a claim, they can sue on that person’s behalf.  If that first year after your date of injury is nearing, to protect your rights you must file a lawsuit against the negligent party.  Otherwise, you will have lost that right.  

That being said, most carriers don’t want to have to pursue this claim, so if your year is starting to run one option is to ask the carrier for a reassignment of that claim.  This can make matters very complicated and if you are in this situation you should contact a workers compensation attorney and a personal injury attorney right away, so that your rights are protected in both matters.



Friday, January 20, 2017

EXTREME LIMITS OF WC COVERAGE

EXTREME LIMITS OF WC COVERAGE
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist


There are many misconceptions about workers’ compensation insurance, what it is and what it covers.  Most people have no contact with their state’s workers’ compensation system until they or a family member have a serious injury on the job and their family is affected directly.  Sometimes what one finds out about workers’ compensation is surprising.

In a case that illustrates perhaps the extreme limits of what kind of accidental injury workers’ compensation insurance might cover and which arose in the context of ongoing national debate over second amendment rights, the Arizona Court of Appeals in Naglieri v. Industrial Commission (2014), suggested that an injury covered by the accidental discharge of a collector’s military machine gun by an auto mechanic who was cleaning and reassembling it on a slow afternoon with his employer’s implied consent, was covered by the workers’ compensation law even though the injurious activity had nothing whatsoever to do with the business of an auto repair shop.

The Court endorsed the imposition of workers’ compensation liability on the employer because the manager of the shop observed the claimant working on the weapon, conversed with him about it and did not stop him from doing it.  Shortly after the manager walked away, the firing rod came unhinged and shot through the claimant’s eye nucleating it and penetrating his brain.

The injury occurred in a shop where the prevailing culture was decidedly macho and pro-gun.  A worker might bring in a new gun and show it off like a woman might show off a new baby.  The district manager of the employer, perhaps carrying his constitutional interpretation too far, testified that every employee had a constitutional right to bring a gun into the workplace and admitted to carrying a concealed weapon himself.

This unusual case illustrates the principle that if an employer knows about a dangerous activity that a worker is engaged in at work and does not stop it, the employer is responsible for any injury that occurs to the worker from that activity.

Obviously, despite the current national debate over second amendment rights, enlightened employers are best advised to consider the ramifications of importing such unrestrained rights into the workplace with the huge risks that entails.  A strong written, posted and enforced policy against such activity in the workplace would shield employers from such liability in the future.



Friday, January 13, 2017

Initial Treatment

Initial Treatment
By X. Alex Carpio, Partner


As a workers' compensation attorney I always look at the initial medical records. The initial records are probably the most important piece of information in any workers' compensation case for two reasons. 

1) The mechanism of injury - the initial record will let us know how the injury occurred and if it was at work. It's important to report how you got hurt and that you were hurt at work. 

2) Body parts injured - make sure you complain to the doctor about all the body parts you injured at work. This is important because the insurance company will focus on what you complained about initially. This is also important because insurance companies will deny in future treatment to any body parts you didn't complain about initially. 

It is important to let your doctor know what hurts at your first visit. Some medical providers will only focus on one body part and not list other problem areas. It's imperative that you review the medical reports and ask your doctor to make any changes that are inaccurate. I have had many cases where the initial medical report fails to list how someone was hurt, what body parts were injured and fails to state it was a work injury. Make sure you get a copy of the initial medical record and request any corrections as it is your legal right. 

Friday, January 6, 2017

Can I work while I am waiting to hear back on my disability application?

Can I work while I am waiting to hear back 
on my disability application?
By Nicholas Wearne, Associate Attorney
Snow, Carpio & Weekley


My advice is do not work if you have applied for social security disability.  Technically you can work for up to 3 months after you have applied for disability and if it does not work out it will be considered a failed work attempt.  Technically, in certain cases, and depending on your age, you can work making less than $1000.00 a month and still be considered disabled.

But again, my advice is do not work… at all.

Part of what you are claiming when you apply for disability is that you are so severely impaired that you are physically unable to work.  If you have applied for disability but you go on to keep working then the judge will confront you about why you feel you cannot work now but you could work for those three months.  They will ask you why you stopped working and why you could not work longer than the three month period.  If you are working making less than $1000.00 they will ask you why you cannot put in more hours.  They will also ask you what you are doing to make the $1000.00 dollars to make sure it is line with your work restrictions.  While under the law you can technically work in some cases, the judges come down very hard on people who are working and often times doubt your truthfulness about your symptoms.  When my clients ask if they can try working some to make ends meet I explain the potential consequences and leave it up to them as to whether or not it is worth it.  Generally speaking, my advice is do not work.

One last word of caution, the judges often have a broad definition of work.  If you are a mechanic for example, and you have been doing side jobs for friends to make ends meet, this is considered work.  If you have been selling things on the internet and making money off them, this is often considered work.  If you have questions about what you can and cannot do as far as working or would like a more detailed explanation of what is in this blog call Snow Carpio, and Weekley to set up a free consultation.