Wednesday, April 18, 2018

AN INJURED WORKER DIES: WHAT HAPPENS TO HIS/HER BENEFITS?



AN INJURED WORKER DIES:  WHAT HAPPENS TO HIS/HER BENEFITS? 
By Chad Snow, Founding Partner/Attorney

We are asked from time to time what happens to injured workers compensation benefits when he or she dies.  

The very simple answer is that the benefits die with them.  Unless the death was caused by or contributed to by the effects of the industrial injury, benefits cease at the time of death of the injured worker.  This is because workers compensation benefits are intended to compensate for time lost from work – a worker who is deceased will obviously no longer be working.  

If the death is related at least in part to the industrial injury or effects from the treatment for that injury, then survivors’ benefits may be payable.  Those benefits are discussed in a separate blog post about survivor’s benefits. 


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.

Wednesday, April 11, 2018

LOCAL POLITICS AND WORKERS COMPENSATION


LOCAL POLITICS AND WORKERS COMPENSATION
By Chad Snow, Founding Partner/Attorney


There is a saying that “you might not be interested in politics, but politics is sure interested in you.”  

I’m often surprised at how many of my friends, even those with advanced educations, have very little idea what goes on in our local political scene and its effect on their lives.  I’ve written in past blog posts about the current makeup of the industrial commission and how that has negatively affected the rights of injured workers in Arizona.  It is important to know that the commissioners are appointed by the governor, who is currently Doug Ducey.  Mr. Ducey has prided himself as a champion of business.  However, at least as it involves the workers compensation field, this has come at the expense of injured workers. 

The commission has supported a host of initiatives in the last two years that all chip away at the rights one has when injured on the job.  these include the limiting of the treating physician’s right to determine appropriate medical care, the reduction of fees that doctors are paid to treat injured workers (thus reducing the number of doctors that will treat work injuries), and the allowance of insurance carriers to fully and finally settle workers compensation cases (more on that in a separate post).

All of these moves, and several others, have been pushed through by a republican controlled legislature that often does not have the interests of working class Arizonans on their minds.  No matter what your politics otherwise, if you are a worker in the state of Arizona, or have already suffered an on the job injury, pay attention to who you vote for local offices and their positions on matters affecting workers. 


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.

Wednesday, April 4, 2018

Full and Final Settlements


Full and Final Settlements
By Brian Weekley, Attorney/Partner


On November 1st, 2017, Senate Bill 1332 went into effect in Arizona. This state law allows for the full and final settlement of workers’ compensation claims. Under the current system, claimants always retain the right file a Petition to Reopen their claim in the event that additional active medical treatment is required for a new, additional or previously undiscovered condition causally related to their industrial injury.

In cases which settled, carriers ( and third party administrators) retained a credit in the amount of the settlement that applied to future indemnity and/or medical benefits.

With unscheduled permanent partial disabilities, claimants  and carriers retain the right to Petition to Rearrange prior ICA Awards. This process allows for the increase or reduction of an Award

With SB 1322,  claimants  and carriers  now have the option of entering into a  full and final settlement of the claim. This type of settlement, if approved , will bar forever the claimant’s right to reopen or rearrange his claim. It’s a one-time deal, so getting it right is critical.

There are two elements of value in any given workers’ compensation case; Medical benefits and indemnity ( the money that the carrier pays the claimant). If you want to understand valuation of a claim, you need to understand how these elements are valued.

Future indemnity benefits are based on two constants; The claimant’s age and the monthly entitlement. The variables are how the value of future benefits, or reserves, are calculated. Different methods produce strikingly different values. 

An annuitized value is based on the amount of money that a carrier would pay to fund an annuity  to pay the monthly award  based on prevailing daily rates of return.  In Arizona, traditionally, the total present value is calculated by using a present value table and plugging in the age and monthly amount. The latter technique generates substantially lesser values than the former. There is no right answer at this point. Valuation is subject to radical differences of opinion depending on whose interests are being pursued.

Future medical benefits should be assessed based on projected future value, including elements like medical inflation. Carriers can value these benefits, but the values may be grossly underestimated. A good rule of thumb is to make sure that the claimant either gets his own valuation and/ or insists that Medicare approve the valuation. Medicare will perform its’ own valuation when its’ interests are involved through a process called Workers’  Compensation Medicare Set Aside ( WCMSA).

If there is a proposed full and final settlement, then we strongly urge all claimants to treat Medicare’s interests with great care. There are thresholds that are very liberally construed by  the Center for Medicare Studies ( CMS). CMS recommends that all proposed settlements be approved if they meet these thresholds.

The undersigned has seen unapproved agreements submitted by companies which call their  products “ certified.” These certifications appear to be internal, and not from Medicare, so beware. 

Moreover, MSA funds should be professionally administered with full reporting and compliance. 

One benefits to resolving future medical under an approved and properly managed MSA is that any funds remaining at death pass to the claimant’s beneficiary. Beware of reversionary language in the agreement that would give all or part of the remaining funds back to the carrier.

Full and final settlements are a new frontier for injured workers and their attorneys. They require preparation and knowledge because, once approved, the claimants’ case is over. It cannot be renegotiated. The claimant and his attorney must understand and protect the rights of Medicare in order for the system to work correctly and to protect the claimant’s future medical care, both injury and non- injury related.  Beware of undervaluation an negotiate from a position of knowledge.

At Snow, Carpio & Weekley, PLC, our top-rated Arizona workers’ compensation lawyers want to ensure that all injured workers have the knowledge they need to protect their legal rights and financial interests when it comes to worker’s compensation settlements. Insurance companies may try to use the option of full and final settlement to their own benefit, but you should know the benefits and risks involved in agreeing to such a decision before you sign a full and final settlement with your work’s insurance company.
Understanding Downsides of a Full and Final Settlement
A full and final settlement, while it is generally a larger sum of money in comparison to other worker’s compensation settlements, is often more beneficial for the insurance company providing it. This protects them from further liability regarding your injuries, as you will lose the ability to reopen your claim in order to seek paid medical care in the future. As a general rule, injured workers should not reach this type of settlement until their condition has stabilized and they have reached maximum medical improvement. 

While Arizona’s full and final settlement law requires that any agreement must outline and explain all likely future medical costs and treatment, there are serious concerns that insurance companies will be able to take advantage of injured workers who are not represented by a professional. Reaching a full and final settlement can make sense in some cases, but workers need to know that there has been a full and accurate valuation of possible future medical costs.

Insurance Company Full and Final Settlements Incentives:

Arizona’s full and final settlement statute is still relatively new, but this is evidence that big insurance companies are trying to avoid making continual payments to injured workers over time, regardless the extent of the injury. Insurers are attempting to settle workers’ compensation claims for the exact same value as these cases would have reached under the old law while also slipping a full and final settlement provision into the agreement. This stipulation in the law could cripple a worker’s potential right to healthcare paid for by the responsible company’s insurance, and taking a full and final settlement without considering the risks to their future healthcare could harm their chances of care if the injuries exacerbate in any way in the future.

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.



Wednesday, March 28, 2018

LEAVING THE STATE


LEAVING THE STATE WHILE A WORKERS’ COMPENSATION CLAIM IS OPEN
By Molly Ocampo, Attorney


 We often have clients who need to move out of state for various reasons while their workers’ compensation claim is open and/or is in litigation.  This situation can present various issues for the injured worker and their attorney.   Arizona Revised Statutes § 23-1071(A) provides that “[n]o employee may leave the state of Arizona for a period exceeding two weeks while the necessity of having medical treatment continues, without the written approval of the commission. Any employee leaving the statue of Arizona for a period exceeding two weeks without such approval will forfeit the employee’s right to compensation during such time, as well as the employee’s right to reimbursement for the employee’s medical expenses, by reason of the violation of this section, will not be compensated.”   

If a claimant needs to leave the state of Arizona for longer than two weeks while they are receiving benefits, or while their claim is in litigation, it is very important that they request permission from the Industrial Commission prior to their departure.  If the claimant is represented, their attorney will request the permission on their behalf.  If the worker leaves the state without permission, the insurance carrier can suspend all of their benefits, including their temporary benefits, if a physician has them off of work or on modified duty.  The Commission usually will grant a claimant’s request to leave the state, absent unusual circumstances. 

As a practical matter, it may not be a good idea for a claimant to leave Arizona while their claim is open.  If the claimant is getting medical treatment under their claim, they will be responsible for finding a physician in the new state to take over care.  This can be difficult because the doctor assuming care may not be knowledgeable about the Arizona workers’ compensation scheme. Additionally, the doctor assuming treatment would be paid for their services based upon the Arizona Fee Schedule, rather than the rates in their state.  Finally, the claimant may need their doctor to testify if the claim goes into litigation.  It can be very difficult to work with an out of state doctor when it comes to testifying, because they are not familiar with the laws and procedures in Arizona, and the Industrial Commission's subpoena powers are very limited.  

Even if a claimant gets permission to move out of state and finds a doctor to take over their treatment, they may still be required to return to Arizona periodically for hearings or independent medical evaluations. If the claim goes into litigation, the claimant will need to present to testify at the initial hearing, unless the Judge grants permission for them to testify telephonically.  The insurance carrier is entitled to have the claimant evaluated in an independent medical evaluation from “time to time” so travel would be required for those appointments as well (although the Carrier would have to reimburse the claimant for their travel expenses).

An injured worker should always consult with their attorney before leaving the state of Arizona for longer than two weeks, to evaluate how that would affect their case.


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.

Wednesday, March 21, 2018

PREPARING THE CLAIMANT’S DOCTOR TO TESTIFY


PREPARING THE CLAIMANT’S DOCTOR TO TESTIFY
By Dennis R. Kurth, Attorney

One of the most important duties of the workers’ compensation claimant’s lawyer is preparing the claimant’s doctor to testify before the ALJ at the Industrial Commission.  Most cases litigated before the Commission require expert medical testimony to meet the claimant’s burden of proof that an injury occurred, that special statutory causation requirements are met or that further treatment is necessary.  Dealing with the many and various physicians who might be involved in workers’ compensation cases requires some considerable people skills in addition to familiarity with the statute and case law.

In workers’ compensation litigation, cases are rarely litigated to a conclusion in one hearing.  Because of concerns related to the budget (the Commission pays the doctor to testify) lay witness and claimant testimony is always scheduled first and then medical testimony in follow-up hearings with the claimant’s doctor going first.  It is absolutely critical that the claimant’s doctor be carefully prepared to testify if the case is to be successful.

Defense attorneys on workers’ compensation cases do not have such concerns with their medical witnesses, practically all of whom were hand-picked by the carrier to do “independent” medical exams and to defend their opinions in court.  They are generally always well-paid and well-prepared to do so.

It is far different and far more difficult for claimant lawyers who most often litigate the case with the doctor who came with the claimant.

There is no substitute for a personal meeting with the claimants’ doctor once his or her testimony is scheduled but not too far in advance that the doctor doesn’t remember what you discussed with him or or her. It is essential to make sure that the physician has all of the records in evidence, including the IME report.  No doctor wants to be surprised and embarrassed on cross-exam because of records they didn’t have.

If there are special statutory requirements as with heart, mental or hernia cases, go over the statute with the doctor and give them a copy of the statutory language.  Explain how their testimony will help meet your burden of proof.   Reassure them that the workers’ comp law does not require proof that an anatomic change occurred if a pre-existing condition is aggravated by work activity, medical treatment is required and disability from work results.  Tell them the weaknesses of your case.  Explain the hearing process so that they feel comfortable testifying.  The cost of such expert witness preparation varies from doctor to doctor but is well worth it.  It is almost always well-appreciated by the doctor.

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.

Wednesday, March 14, 2018

ANATOMIC CHANGE NOT NECESSARY TO PROVE INJURY

ANATOMIC CHANGE NOT NECESSARY TO PROVE INJURY
By Dennis R. Kurth, Attorney

The Arizona workers’ compensation statute requires proof of an “injury” by “accident” within the course and scope of employment to establish a compensable claim. (See A.R.S. §23-1021(A)).  Case law has liberalized the term “accident” to encompass any work activity, even repetitive work activity, that gradually causes an injury over a period of time.  There does not need to be a single, specific traumatic event that causes an acute medical condition immediately in order to prove that an injury occurred.

Likewise, “injury” has been defined by the appellate courts as any work-related condition that causes the need for medical treatment and disability from work.  In cases of pre-existing conditions aggravated by work activity, whether industrial in origin or not, a claimant’s proof must include evidence that the industrial injury acted upon a pre-existing condition to produce a “further injurious result” according to long-standing case law.  (See Professional Furniture Service v. Industrial Commission, 133 Ariz. 206, 650 P.2d 508 (App. 1982)).

The philosophical underpinning of this interpretation of the workers’ compensation statute is the old tort principle that the tortfeasor takes the victim as he or she is with whatever pre-existing conditions or infirmities they may have.  A tortfeasor, it is said, is not entitled to a completely healthy victim and must be responsible for the aggravation of any pre-existing condition his victim carries. In worker’s compensation, the same liability pertains to the employer.

In workers’ compensation, furthermore, case law has established that a claimant need not prove that the work activity or trauma caused an organic or anatomic change in the pre-existing condition in order to establish that an injury occurred.  It is simply enough that the work activity caused the need for medical treatment and disability from work. (See Industrial Indemnity Co.  v. Industrial Commission, 152 Ariz. 195, 731 P.2d 90 (App. 1986) and Mandex v. Industrial Commission, 151 Ariz. 567. 729 P.2d 921 (App. 1986)).  This rule however, liberal as it may seem, is often problematic in its implementation.

First, it is counterintuitive to treating physicians and surgeons in workers’ compensation cases.  They are trained to look for objective evidence of acute traumatic injury on clinical examination or imaging studies and if they don’t find it are reluctant to find causation or even an “injury” at all.  They, of course, are looking for “medical causation” but ALJ’s are looking for “legal causation” instead.

In litigation before the Industrial Commission this rule comes up frequently.  IME doctors very commonly ignore it and won’t find causation without proof of anatomic or organic change in the claimant’s pre-existing condition.  It is extremely rare to see an IME examiner find causation without proof of organic or anatomic change.

Suspicion is that many valid claims get denied or closed improperly because of this misunderstanding of the law.  A large percentage of aggrieved claimants do not seek legal representation and either go it alone in front of the ALJ or just don’t protest the closure or denial of the case at all.

It is incumbent on workers’ compensation claimant attorneys to educate the attending physician or surgeon about the law, including that proof of an organic or anatomic change is not necessary.  Most are not aware of the rule and genuinely want to be effective witnesses before the ALJs.  It can also change their testimony in favor of the injured claimant in many situations.

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.

Wednesday, March 7, 2018

Equitable Apportionment

“Equitable Apportionment” of Workers’ Compensation Lien
Based Upon Employer’s Comparative Fault
By Dennis R. Kurth, Attorney

In a recent and very significant case, the Arizona Court of Appeals has established the right of an injured worker who sues negligent third parties for causing his injury and whose recovery is reduced by his employer’s comparative fault, to a trial to determine his overall damages and the percentage of his employer’s fault in order to reduce the workers’ compensation carrier’s lien.  The case is Twin City Fire Insurance Company v. Leija, (Ct. App. Div. One, 8/31/17).

The Arizona Workers’ Compensation law, which provides the exclusive remedy for an injured worker against his or her own employer or co-employee, has long allowed the worker to sue negligent third-parties for his/her injuries.  The statute also grants the employer’s workers’ compensation carrier a lien to the full extent of compensation and medical benefits paid and a credit against future benefits, medical or indemnity, to the extent that the third-party recovery exceeds the amount paid. (See A.R.S. §12-1023(A) and (D)).

For many years, a claimant in a third-party case could not force the workers’ compensation carrier to compromise its lien in order to settle a disputed liability case against a third-party.  Nor could a claimant maintain a bad faith case against a workers’ compensation carrier for refusing to compromise its lien.  (See Boy v. Fremont (1987)).   Many a third-party claim had to be abandoned or not pursued because of this rigid interpretation of the lien statute.

When Arizona followed joint and several liability in negligence cases, and plaintiffs could collect their full damages from any negligent party, this strict interpretation of carriers’ lien rights did not work an injustice to the injured worker.  But when joint and several liability gave way to the adoption of comparative negligence in the early nineties, that strict interpretation began to cause serious problems in third-party cases and manifestly unfair results to injured workers.

In Aitken v. Industrial Commission (1995), the Arizona Supreme Court began to recognize the need for an “equitable adjustment” to the workers’ compensation carriers’ lien rights in cases where the assessment of comparative fault to the injured workers’ employer reduced the overall recovery.

Without offering explicit guidance in how to implement an “equitable adjustment” the Aitken Court generally stated that the future credit should apply only to the extent that compensation benefits paid exceed the negligent employers’ proportionate share of the total damages awarded by a jury in the trial of the third-party action.

Two subsequent Supreme Court cases, however, failed to add clarification to the Aitken rule in the context of sham “summary trials” between the injured workers and third-party defendants to arbitrarily set the negligent employer’s percentage of fault in proceedings to which neither the employers or their carriers were invited to participate.

In the first, Grijalva v. State Compensation Fund (1996), the superior court found the employer 100 percent at fault and its carrier not entitled to any lien in a case where several third-party defendants paid substantial sums to settle! The Supreme Court rejected that judgment as an “artful contrivance” to circumvent the carriers’ lien rights. 

In the second case, Stout v. State Compensation Fund (2002), the injured worker and third-party defendant entered a side agreement not disclosed to the workers’ compensation carrier and a brief sham hearing before the superior court to set the employer’s fault and reduce its carrier’s lien rights significantly.  That was also rejected by the Supreme Court because the claimant did not give “candid and timely notice” to the workers’ compensation carrier of their side agreement and summary trial.  Because the summary trial was not a “true contest” to set the employer’s fault, the Supreme Court found the workers’ compensation carrier entitled to its full lien.

In Twin City Fire Insurance Co. v. Leija, the Supreme Court commented favorably on the Leija’s bona fides in not trying to reduce the workers’ compensation carrier’s lien based on a sham proceeding contrived to increase the employer’s fault without giving it due process, a chance to prove that the claimant’s damages and the employer’s fault were limited.

For the first time since Aitken, the Supreme Court found the injured worker entitled to “equitable apportionment” of the workers’ compensation carrier’s lien where the parties had settled without ever going to trial and did not conspire to artificially set the employer’s fault.  For these reasons, the injured worker was entitled to a trial in superior court, with the employer and its workers’ compensation carrier entitled to participate fully and present evidence on their own behalf, in order to set the percentage of employer fault and to reduce its carrier’s lien accordingly.

Although, in the same opinion, the Supreme Court refused to overrule Boy v. Fremont and impose a duty on workers’ compensation carriers to reduce their liens, the opinion has gone a very long way toward achieving fairness for claimants in these third-party situations and is very welcome in the workers’ compensation and personal injury communities

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.