Friday, April 21, 2017

What are my chances of getting approved if I am under 50 years old?

What are my chances of getting approved 
if I am under 50 years old?
By Nicholas Wearne, Associate Attorney

As you age the level of disability that you must prove relaxes.  In other words as you get older getting Social Security Benefits gets easier.  The catch is this relaxation of the rules does not start till you are 50 years old.  

While there are certain exceptions, if you are under 50 years of age you generally must prove that you are not even able to do sedentary (sit down) work.  You have to prove that there are no jobs in the national economy that you could do.   We generally prove this by sending a form for your doctor to fill out.  If you cannot sit more than 4 hours a day, it suggests you cannot do a sit down job.  If you are going to have to miss work more than 4 days a month due to health problems, it suggests you cannot do a sit down job.  If you are going to be off task more than 25% of the time due to pain/symptoms, then it suggests that you cannot do a sit down job.

Proving you cannot do a sit down job is difficult.  You have to have a doctor who supports you and a judge who believes both you and the doctor.  While it may be difficult for people 50- to apply, I would always recommend applying for social security disability if you have the requisite support of your doctor. If you don’t have the requisite support I would still apply but then focus on getting that support from your doctor. 

Friday, April 14, 2017


By Dennis R. Kurth, Associate Attorney
Workers' Compensation Specialist

Hernias, a very common type of industrial injury, are treated differently from all other injuries in the Arizona workers’ compensation law.  They are divided into two categories under the statute depending on whether they are purely traumatically-caused or whether a pre-existing abdominal wall weakness contributes to the hernia.  (A.R.S. §23-1043(1) and (2)). 

“Real traumatic” hernias or “class one” hernias, are those caused by a direct injury to the abdominal wall, whether by a strain from lifting, external force or otherwise, which allows the viscera to protrude and where there is no proof of a pre-existing weakness such as a prior hernia or congenital defect.

These hernias are treated like almost all other injuries and the claimant’s burden of proof is to establish only that the work activity contributed to the development of the hernia.  Temporary compensation benefits for real traumatic hernias are the same as for all other injuries with no monthly limit on indemnity benefits.

“Class two” hernias encompass all other hernias and are the result of a combination of a work-related strain and a pre-existing abdominal weakness.  Apparently, the drafters of this legislation felt that such hernias would be much more ubiquitous than real traumatic ones and because not solely the responsibility of industry, deserving of only limited compensation.

The drafters also added some additional requirements, beyond the normal burden of proof, to these type of hernias: (1) the immediate cause must be a “sudden effort or severe strain or blow”; (2) that the descent of the hernia immediately followed the cause; (3) that the cause was accompanied by severe pain; and, (4) that the pain was so severe that the claimant reported it immediately to one or more persons.  (A.R.S. §23-1043(2)(A-D)).

Fortunately for claimants, because the workers’ compensation law must be liberally construed, it is not necessary to establish every requirement to the letter and case law under the statute has softened the requirements considerably.  Immediate descent means anything from several minutes to several days.  Severe pain, a very subjective standard, can mean some pain or even no pain.  Immediate communication to one or more people means within a reasonable time.  All of these matters of proof are questions of fact for the ALJ.  The distinction between the two classes of hernia is a medical question to be addressed by the doctors.

If all of the statutory criteria for class two hernias are met and medical testimony establishes a causal relationship to the work activity or strain, compensation is payable for only two months, which is usually sufficient to cover the normal recovery time after surgery. The two month compensation limit, however, does not apply if the treatment/surgery leads to complications which delay recovery and/or necessitates further medical treatment.  An example of such complication could be an infected mesh which requires further surgery.

Workers’ compensation carriers tend to treat all hernias as class two hernias without regard to the details.  Usually a claimant will have to successfully litigate the issue to have a compensable class one hernia.  Such injured claimant should consult a worker compensation specialist to see if their injury can be classed as a real traumatic hernia rather than a class two hernia.

Friday, April 7, 2017

The Treating Physician Rule

The Treating Physician Rule
By Nicholas Wearne, Associate Attorney

Code of Federal Regulations Section 404.1527(2)(c)(1) states that the Social Security Administration will give more weight to a source that has examined and treated you than one that has not examined and treated you.

When you apply for Social Security Disability your file will be reviewed by many different people including doctors.  The doctors who review your file will likely take a stance or make a determination regarding what your work restrictions should and should not be.  While your initial application can be denied for many different reasons, a reason that I see often is that the reviewing doctors felt my clients could return back to a level of work where there are not disabled.

How is this possible when the law states that your treating doctor is supposed to be given more weight than a doctor that has not examined you?  It usually happens because peoples treating doctors have not given an opinion on what they are and are not able to do as far as work.  If your treating doctor has not given you specific work restrictions then there is no opinion to refute the one given by the reviewing doctors with social security disability. 

When I sign social security applicants up for representation one of the first things I do is get an opinion on file from the treating doctor regarding what they are and are not able to do as far as work.  They may still get denied at the initial levels but will have a solid legal argument that they are disabled.  I refer to Section 404.1527 in almost every hearing I do.  If you believe yourself to be disabled and would like help in getting an opinion regarding work restrictions from your treating doctor, contact Snow Carpio and Weekley for a free consultation.

Friday, March 31, 2017


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

Medical releases can be problematic in Arizona workers’ compensation cases.  The Arizona statute says that the medical records of a physician treating an injured worker are not privileged communications that can be withheld from “interested parties” (insurance carriers) who need the information “…for a proper understanding of the case and a determination of the rights involved.”  Consequently, a claimant must sign a medical release when requested by the carrier.  (A.R.S. §23-908(D)). There is often tension, however, between the carrier’s right to get medical records and the claimant’s right to privacy and to assert their doctor/patient privilege.

There is also a category of medical records unrelated to a claimant’s industrial injury that are considered discoverable by the carriers and their lawyers.  Those would be records of treatment for a condition similar to the industrial injury in the past.  For example, if a claimant who sustains a low back injury at work had a prior low back surgery and pain management treatment, the carrier would certainly be entitled to those records “…for a proper understanding of the case.”

Problems arise, however, when a claimant, usually one unrepresented and entering into litigation at the Industrial Commission, is presented with a medical release from the carrier or its lawyers, requiring them to give the carrier and lawyer access to any and all medical records from any doctor who ever treated the claimant for anything.

These unlimited medical releases would give the carriers and their lawyers access to sensitive, personal records of mental health, sexual dysfunction or infectious disease treatment without regard to the nature of the claimant’s industrial injury.  There is always the potential that such sensitive, personal records might be used by the carrier’s attorney to embarrass the claimant at the hearing.
These open-ended medical releases usually arrive with a packet of discovery paperwork like interrogatories and a deposition notice as well as correspondence from the carrier’s lawyer threatening the claimant that the release cannot be changed or modified according to HIPPA but can only be signed and returned.  This, even though HIPPA doesn’t apply to workers’ compensation medical releases.

Clearly, carriers are not entitled to such a broad unlimited, medical release under the law.  The workers’ compensation statute also states that medical records pertaining to conditions unrelated to the industrial injury “shall remain privileged.”  (A.R.S. §23-908(A)).  A claimant who objects to signing an unlimited medical release would be on solid legal ground in doing so.

Friday, March 24, 2017

I am disabled and have no money, how does my attorney get paid?

I am disabled and have no money, 
how does my attorney get paid?
By Nicholas Wearne, Associate Attorney

If you are applying for disability it means that you are unable to work.  Savings are likely running out and most of my clients are living with friends and family.  The question often comes during initial consultations “How am I supposed to pay you?” 

There are lots of rules about how attorneys get paid for helping Social Security Disability applicants but the answer to how I get paid is simple.  If I am successful in helping a client qualify for Social Security Disability benefits, there will be money owed to them back to around the time they had to stop working.  I charge 25% of the back pay or $6,000 dollars from the back pay, whichever is less.  Once I have been paid from the back pay, I do not charge anything more.  Also, if a client does not win then I do not charge.

Just to illustrate, if a client gets $10,000 in back benefits I would charge 25% ($2500).  If a client gets $100,000 in back benefits I would charge $6,000 dollars.  If we do not win, I do not charge and consultations are always free whether we take the case or not.

Friday, March 17, 2017

VA Disability vs. Social Security Disability

VA Disability vs. Social Security Disability
By Nicholas Wearne, Associate Attorney

While I am not completely familiar with the process of applying and acquiring Veteran’s Disability Benefits, I have many clients who have applied for and obtained VA disability benefits.  

The law states that the judge is supposed to take the approval of Veteran’s Disability Benefits into consideration when making a determination regarding Social Security Disability Benefits.  

While the law merely says the judge has to take it into consideration, my experience is it tends to hold a lot of weight with them.  If are a disabled veteran and want to apply for Social Security Disability Benefits as well, contact Snow Carpio and Weekley for a free consultation.

Friday, March 10, 2017

Injured While Traveling For Work Outside of Arizona

Injured While Traveling For Work Outside of Arizona
By Diana Robles, Associate Attorney

          You may bring a workers compensation claim in Arizona in any of these three situations:  1) you reside in Arizona; 2) if the company you work for is headquartered in Arizona; or, 3) if you are injured at work while you are traveling outside of Arizona.  

If you are injured out of state, you have a right to bring that claim in the state where you were injured, or wherever the company you work for is headquartered.  Individual states have varying laws that outline the workers rights in that state.  Once a claim is filed in a particular state, that state’s laws would govern the case.  

So it would be impermissible to request that a matter which had previously been filed in a different state to be transferred to Arizona.  If the employer has filed the matter in a different state, you are subject to the laws and rules of their workers compensation system and if you need help you must contact an attorney licensed to practice law in that state to help you with that matter.  

If you were injured while you were traveling outside of Arizona contact an attorney right away to determine what would be the best way to handle your claim.