Friday, December 15, 2017

WHAT IF MY EMPLOYER DOESN’T HAVE WORKERS COMPENSATION INSURANCE WHEN I GET INJURED?

WHAT IF MY EMPLOYER DOESN’T HAVE WORKERS COMPENSATION INSURANCE WHEN I GET INJURED? 
By Founding Partner/Attorney Chad Snow
Snow, Carpio & Weekley


Arizona law requires all employers to carry a policy of workers compensation insurance to cover any employees who are injured on the job.  In some instances, employers fail to comply with this law and their workers’ pay the price.

Luckily, the framers of the Arizona workers compensation act foresaw this unfortunate circumstance and created the special fund division – no insurance section at the industrial commission.  The Special Fund division is funded by surtax on all work comp premiums paid in the state and is a division of the ICA.

When a worker is injured while in the employ of an employer who fails to carry work comp coverage, the no insurance section acts as if they were the insurance company, pays the claim if appropriate (compensation and medical benefits), and then pursues the employer for reimbursement of the costs of the claim, plus a penalty for not having carried insurance.

Unfortunately, the special fund division is not subject to many of the same claims processing requirements that private insurance companies are, so injured workers receiving benefits through them often have to wait much longer to get paid or get medical treatment authorized and don’t have some of the same remedies available as those covered by a private carrier.

If your employer didn’t carry work comp coverage at the time of your injury, call the workers compensation attorneys at Snow, Carpio, & Weekley, and we can help you file a claim through the special fund division – no insurance section.

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, December 8, 2017

WHAT IF I HAVE A PRE-EXISTING CONDITION THAT IS RE-INJURED IN MY WORK INJURY?

WHAT IF I HAVE A PRE-EXISTING CONDITION THAT IS RE-INJURED IN MY WORK INJURY?  
By Founding Partner/Attorney Chad Snow
Snow, Carpio & Weekley


As we all get older, our bodies break down and suffer degenerative changes.  Many people get regular treatment for chronic conditions, especially of the spine and joints, for years before their work injury. Then an unfortunate injury occurs to that same body part, turning that occasional chronic pain into a disabling, acute injury.  Insurance carriers always try to prove that all of the injured worker’s problems are due to the pre-existing condition.

However, many times we are successful in proving that the work injury caused either a temporary or a permanent aggravation of the pre-existing condition.  a temporary aggravation is one that eventually returns back to the baseline condition as it was before the injury.

A permanent aggravation is an injury that causes the pre-existing condition to be permanently worsened and causes a permanent reduction in function to the injured body part.  This is proven through medical testimony of a treating or examining physician who reviews your prior medical records and other testing done after the injury, and gives an opinion as to the extent to which your pre-existing condition was aggravated by your work injury.


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, December 1, 2017

THE ATTORNEYS AT SNOW, CARPIO, & WEEKLEY; WHAT MAKES US SO DAMN SPECIAL?

THE ATTORNEYS AT SNOW, CARPIO, & WEEKLEY 
WHAT MAKES US SO DAMN SPECIAL?  
By Founding Partner/Attorney Chad Snow
Snow, Carpio & Weekley


What sets the attorneys at Snow, Carpio, & Weekley apart from the dozens of other attorneys who represent injured workers in Arizona?  First, it is our backgrounds.  All of the attorneys in our firm come from working class backgrounds and understand and appreciate hard working people who just want to be treated fairly.  Two of us were roofers before becoming attorneys, two worked in other areas of construction, two were school teachers, and one lived in other countries while his father worked for an international mining company. 

Another special thing about our attorneys is that we fight for people’s rights outside of the courtroom as well as inside.  two of our attorneys were the chairman and general counsel of the historic 2011 recall of then Senate President Russell Pearce – the first time in us history that a sitting legislative leader was removed from office by recall.  Our firm stood up to then Maricopa County Sheriff Joe Arpaio when he was abusing immigrants and jailing his political opponents.  We were vocal opponents of now disbarred County Attorney Andrew Thomas when he was similarly abusing his power.  We continue to lobby at the legislature and have been instrumental at changing many laws favorable to those injured on the job. 

One of our attorneys is the past chairperson of Chicanos Por La Causa, one of the nation’s largest advocacy groups for Latinos and immigrants.  Another of our attorneys sits on the board of the catholic diocese of Tucson.  Another wrote the legal specialization test for many years for the state bar of Arizona for attorneys who wanted to become certified specialists in Arizona workers compensation law.  Five of our attorneys speak fluent Spanish.  Two are the children of immigrants.  All of us have lived in Arizona almost our entire lives.  Two of us served as church missionaries in other countries, dedicating two years of our lives to serving others.  Two were partners at our largest competitor and left to join our firm because they saw how we fought for and treated our clients.  All of us have families and understand the impact a work injury can have on someone who is taken out of work for a long period of time. 

If you are shopping for an attorney for your Arizona work injury, you can’t do any better than the lawyers at Snow, Carpio, & Weekley!!!

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, November 24, 2017

TRACKING INDUSTRY ABUSES INDEPENDENT CONTRACTOR STATUS

TRACKING INDUSTRY ABUSES
 INDEPENDENT CONTRACTOR STATUS
By Attorney Dennis Kurth
Snow, Carpio & Weekley


The distinction between “employee” and “independent contractor” is crucial in workers’ compensation law.  Employees are covered by state-mandated, employer-provided workers’ compensation insurance but independent contractors are not.

There has long been tension between employers and workers’ compensation claimants over who is an independent contractor and who is an employee when workers are injured and need medical treatment and compensation for time lost from work.

The IRS has well-established rules for determining who is an independent contractor for tax purposes and, while those rules form a starting point for analyzing workers’ compensation issues regarding independent contractor status, most states’ workers’ compensation laws go further.  Workers’ compensation statutes are, of course, remedial in nature and designed to make industry shoulder the burden of caring for injured workers so that taxpayers do not.

Under common law rules of statutory construction of remedial legislation, state boards and appellate courts must liberally construe the term “employee” in order to find coverage for injured workers.  In Arizona, case law has focused on the question of whether the injured claimant was doing work that is an integral part of the employer’s business in determining whether the employer has the “right to control” the worker which is the main feature of employee rather than independent contractor status.  If a worker is doing such work rather than simply providing a service ancillary to the employer’s business, he/she is most likely an employee, not an independent contractor.

For many years, the trucking industry has been fertile loam for employer abuse of independent contractor status.  In order to avoid federal tax liability for FICA contributions as well as workers’ compensation insurance for drivers, the industry has devised all manner of subterfuge to make it appear that truckdrivers, almost all of whom are providing a service integral to the trucking companies’ business, are independent contractors rather than employees.

Recently, a USA Today investigation report blew the lid off a major independent contractor scam in the ports of Los Angeles where truckers haul freight from the ports to warehouses and rail lines for distribution to all of the major retailers around the country.  Reporters found that port trucking companies have engaged in the practice of forcing truckers, many of whom are immigrants who don’t speak or read English, to sign contracts to lease their trucks and pay all expenses related to their purchase, maintenance and operation often leaving the driver with no net earnings despite working far more than forty hours a week. Reporters also discovered that grossly overworking the drivers was leading to driving accidents and serious injuries not covered by workers’ compensation.

Drivers complained that if they refused to work continuous shifts without rest, they would be let go, leases terminated and the truck re-leased to a new driver with all their equity in the truck gone.  Consequently, they felt they had no choice but to accept the leases and work the long hours.

Fortunately, according to the USA Today report, drivers are winning practically all of these cases that go before the California Department of Industrial Relations.  The “labor commission” is ruling consistently that the drivers are employees not independent contractors.  Judging from employer responses to the reporters, however, they are not remorseful and it appears that this systemic abuse of independent contractor status might take much longer to stamp out.


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, November 17, 2017

NEW WALMART EMPLOYEE DELIVERY PROGRAM EXPANDS WORKERS’ COMPENSATION LIABILITY

NEW WALMART EMPLOYEE DELIVERY PROGRAM
EXPANDS WORKERS’ COMPENSATION LIABILITY
By Attorney Dennis Kurth
Snow, Carpio & Weekley


According to the Washington Post, Walmart is thinking of using its fixed-site employees to deliver packages to customers on their way home after work.  The program, being tested in a couple of states presently, is a new tactic in its battle with Amazon for retail dominance.

The program is voluntary but Walmart intends to pay such employees extra, even overtime pay if necessary. Walmart sees the program as a way to cut costs as local delivery is the most expensive part of the fulfillment process.

Walmart needs to reassess this program with their risk management people.  Although it reflects the rise of the “Uber-style gig economy”, according to the Post, it also creates additional workers’ compensation liability for the company if the delivery results in an accident and injury to the employee making the delivery and especially if it causes an injury to an innocent third-party.

Workers’ compensation-covered injuries must “arise out of” and “in the course and scope of” employment under any states’ statute.  The workers’ compensation law was never intended to cover injuries going to or coming from work.  Until an employee arrives at work or home, his/her risk of injury while traveling to or from work is the same as the general publics’.

There are some well-known exceptions to the “going and coming” rule.  One statutory exception in Arizona is for police officers and firefighters.  They are covered for workers’ compensation if injured or killed while traveling directly to or from work as long as they are not engaged in criminal activity.
Other exceptions to the going and coming rule have been made by case law and provide workers’ compensation coverage for travel-related injuries where the employer pays for the employee’s transportation or provides a company vehicle.  An injury to an employee driving an employer-provided conveyance would clearly be covered even if incurred on the way to or from work. Also, injuries to local traveling employees using their own vehicles would be covered except when they deviate from the scope of employment by making a personal side trip.

 Another category of exceptions to the going and coming rule is for employees hurt on “dual purpose” trips or “special errands” for the employer while on their way to or from work. Coverage for such injures would pertain if the “special errand” was necessary for the employer as opposed to simply elective or convenient.  In other words, the delivery employee would be covered by workers’ compensation insurance only if the delivery/errand was important enough to the employer to require some other employee to do it had the volunteer not.

Walmart’s plan would seem to fit the “special errand” requirements since such deliveries by the “volunteers” would seem to be necessary one way or the other.  By paying the volunteer employee for making these after hour deliveries, however, Walmart is adding another going and coming rule exception to the mix which surely makes them liable for workers’ compensation coverage for any delivery-related injury to the employee.

Before Walmart’s executives get credit for devising a new way to save costs on their deliveries, there should be some serious consideration of the significant increase in workers’ compensation liability that this delivery program may entail.  Unless they plan to give extra driver training and screening to their participating employees, it might be a good idea to put this program on hold.  Not only could the employee be injured seriously in an accident on the road but a negligent delivery could cause an accident to another party that would subject the company to significant civil liability not circumscribed by workers’ compensation limits.

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, November 10, 2017

VOLUNTEERS

VOLUNTEERS
By Attorney Dennis Kurth
Snow, Carpio & Weekley


Volunteers are generally not “employees” and, therefore, are not covered by the workers’ compensation law if they are injured on the job.  There are, however, statutory exceptions to the rule for volunteer fireman and policemen, DPS reserves, sheriff’s posse members, voc rehab clients of DES, national or State guard or militia members, Game and Fish reserve members and emergency search and rescue workers.

Although the Arizona workers’ compensation statute seems to be clear as to who is a volunteer and who is not, every great once in a while a dispute arises when a putative volunteer gets hurt on the job and files a claim for benefits.  Litigation over those disputes sometimes results in an appellate opinion that provides some definitive guidance for workers’ compensation practitioners.

The most recent such appellate opinion involved a teacher who was sent by a local foundation to teach English in Africa (Cote d’Ivoire) where she was seriously injured in a bus accident while on a work-related journey.

The foundation for which the claimant worked was a 501c3 non-profit organization focused on adult literacy in African countries.  The claimant had worked for the foundation on a prior assignment in Africa without incident.  After several years at a regular job in the States, she was called by the foundation again and took the assignment on which she was injured.

In a local one-week orientation program prior to departure, the claimant was told that she was being engaged strictly as a volunteer and signed a Participation Agreement to the same effect.  In it, she acknowledged that she would receive a nominal living stipend, not a salary, and some funds to cover visas, inoculations and other travel expenses.  Once settled in Africa, she received a monthly stipend ($850) to cover her living expenses, transportation and incidental expenses. The stipend was not reportable to the IRS as taxable income.

The claimant’s workers’ compensation claim was, of course, denied, and, by the time she got before the ALJ, she claimed, unconvincingly, that she did not understand the nature of her status as a volunteer and believed that she was an employee.  Because of her education, prior participation in the program, many years of teaching experience and, of course, the documents she had signed, the ALJ did not find her credible or her claim compensable.  She appealed.

Not surprisingly, the Arizona Court of Appeals upheld the ALJ’s decision in a published opinion that provides guidance for evaluating similar but, hopefully, more meritorious claims in the future.
In order to be an “employee” eligible for coverage under the workers’ compensation law, the Court said, there must be a contract of hire, express or implied, between the parties in which the worker agrees to work for the employer for some type of payment.  The payment does not need to be in the nature of a traditional salary but must be something of value.

The key requirement is that the putative employee expects to receive and does receive something of value as payment for his/her services.  The totality of the facts regarding the relationship between the employer and the claimant, including their intentions and expectations, must be examined according to the Court.  A volunteer does not expect to be paid a salary or wages.

The final important factor for the Court of Appeals in affirming the ALJ’s award was that the statue created several specific exceptions to the non-coverage rule for volunteers and the claimant did not fit any one of them.  Consequently there was no legislative intention to cover her situation.

While this claimant’s efforts to obtain workers compensation coverage for an injury were doomed from the inception, the Court of Appeal’s opinion provides valuable guidance for more deserving cases that are certain to appear before the Industrial Commission in the future.  One such case involves bartenders at an American Legion Post who, the Post claims, are volunteers because they are not paid any hourly wage or salary but are allowed to keep all tips which were considerable.  It remains to be seen how the Industrial Commission will apply the Court’s opinion to such facts.


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, November 3, 2017

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND
By Attorney Dennis Kurth
Snow, Carpio & Weekley

In the last few years, in reaction to some very high profile incidents around the country, there has been recognition of the tremendous stress police officers are under as a regular part of their daily duties.  The law enforcement business is fertile loam for workers’ compensation claims especially claims for physical injuries.  Any long-term police officer without a record of several industrial injuries and surgeries is an outlier.

At the same time as there is greater appreciation for the physical and mental stresses of police work there is also, ironically, a clear trend in workers’ compensation law, at least in Arizona, to deprive police officers of coverage for mental injuries, like PTSD, caused by extreme job stress. Mental injury claims by police officers, particularly PTSD, are becoming more prevalent as well as problematic.  There is a lot more official (municipalities) resistance to these claims in Arizona.

Because what any civilian would consider extraordinary stress seems simply to be a daily feature of the life of a police officer, it has become very difficult to win a PTSD claim for a police officer before the Industrial Commission of Arizona.

The Arizona workers’ compensation law was changed significantly in 1980 to increase the burden of proof for all mental stress claims.  The law went from requiring proof of any work contribution to a double hurdle of proof of unusual, unexpected or extraordinary stress that is a “substantial contributing cause” of the mental condition. (A.R.S. §23-1043.01(B)).  The legislature specifically wanted to discourage such claims, at least in the general working population, by making it more difficult to win them.  There was no distinction in the statute for police officers.

Case law since then has held that the test of what is unusual, unexpected or extraordinary stress is an objective one which compares the claimant’s stress to that of fellow officers rather than to the general public.  As one might expect, if all police officers are subject to tremendous stress on a daily basis, it will be near impossible to successfully file a mental stress claim.

A recent Arizona case, now in the Court of Appeals, illustrates this dilemma.  The officer held several different assignments over a twenty year career with the City of Phoenix.  He filed a workers’ compensation claim for PTSD which he attributed to a fifteen-item list of extremely traumatic events including suicides, homicides, child drownings, domestic violence and horrific auto accidents over most of those years.  The final event triggered a flashback that reduced him to sitting in his patrol car and crying.  Finally he sought treatment and was diagnosed with PTSD.

Although the officer had some personal issues related to a contentious divorce and a minor disciplinary matter, both his and the city’s psychiatrists testified that he suffered from PTSD and that the cumulative job stresses on the officer’s list were a substantial contributing cause of his condition.
Both the claimant and the City were represented by experienced workers’ compensation specialists who duked it out, toe to toe, before a very experienced, well-respected ALJ at the Industrial Commission. The officer was specifically found credible by the ALJ but lost the case because, according to the ALJ, he did not prove that his stress was unusual, unexpected or extraordinary compared to other police officers.

What turned the case for the City was the testimony of two high-level, long-tenured officers who said that all police officers are first responders who are exposed to extreme stresses daily in their jobs.  They considered the claimant/officer’s stress to be typical for first responders rather than extraordinary or unusual.  Each also claimed to have personally experienced several shooting deaths, dying declarations and one had been shot himself.  The City attorney also filed documentary evidence consisting of statistics on police staffing levels, listings of drowning calls, summaries of officers who died in the line of duty and other events tending to support its position that extraordinary stress is simply a part of police work.

The ALJ’s award will now face scrutiny by the Court of Appeals but it is not real likely, in this writer’s opinion, that the Court will overturn the ALJ’s award as the objective test of unusual and extraordinary stress has been upheld in other employment contexts as well.  It is more likely to draw the Court’s admonishment that the statute be changed to accommodate these serious and meritorious claims.

In the meantime, it is hard to accept that under a remedial statute intended to protect injured workers, those doing the most dangerous of all jobs cannot receive workers’ compensation benefits because they all face extreme danger daily.  Perhaps eventually this case might spark the legislature to change the burden of proof for police officers in mental stress cases.  Certainly this ominous ruling should not represent how we want our workers’ compensation law to treat our police officers.


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.