Friday, May 26, 2017

The Long Hearing Process

The Long Hearing Process
By Erica Melendez, Associate Attorney

A truly frustrating fact for injured workers is the length of time for the hearing process.  A case goes through the hearing process when the injured worker and the insurance carrier cannot agree as to the worker’s right to a certain benefit.  Issues include whether the person was even injured at work from the outset of the case, whether the person is entitled to additional medical treatment and whether the person is entitled to a permanent benefit.  One worker’s compensation case can go through the hearing process several times for different issues.  The hearing process is necessary is so that an Administrative Law Judge can hear evidence and determine the injured worker’s right to a certain benefit based on the Judge’s determination of the credibility of the lay witnesses.  If there is a conflict between doctors, (for example, your doctor believes that you need a certain surgery but the insurance company’s doctor says you do not need any further treatment) the Administrative Law Judge decides which doctor’s opinion is more probably correct. 

Given the number of cases in the system, the fact that many cases will have to go through the hearing process multiple times, plus the time necessary for parties to prepare the case for hearing, the time for a case to even get to a Judge for the initial hearing is currently approximately 2 ½  months.  At the initial hearing before the Judge, the injured worker and any lay witnesses (non-medical) will testify.  Next, the Judge determines if medical testimony is necessary and will set “further hearings” for the doctors to testify.  The doctors are set to testify by telephone and they are set according to the doctor’s schedule, the Judge’s calendar and the calendar of any attorneys assigned to the case.  The number of calendars which have to be coordinated makes setting the further hearings difficult and often means there is a months-long wait for the doctors to testify.  Although Judge’s staff work their hardest to get the hearings scheduled quickly and efficiently, the wait can be excruciating for an injured worker waiting for benefits.  After the hearings are completed, the Judge has 30 days to make a decision in the case. 


The wait for hearings and decisions in industrial cases can be frustrating but it is a necessary part of the process and it’s important to know that  the individuals involved in the hearing process try to make the wait as short as possible. 

Friday, May 19, 2017

What does it mean when my Workers' Compensation case is made stationary?

What does it mean when my Workers' Compensation 
case is made stationary?  
By Erica Melendez, Associate Attorney

When a doctor finds that your medical condition has stabilized to the point that no further medical treatment will improve your condition, or that you have reached “MMI- maximum medical improvement”,  your worker’s compensation case can be determined to be stationary.  This does not mean that the doctor is saying you are completely healed, it just means that your healing has stabilized and the doctor isn’t recommending any further treatment that will help your condition get better.  At this point the doctor should also give their opinion as to whether you have permanent impairment to your body, if you have permanent work restrictions and whether you need “supportive care”.  

“Supportive Care” is treatment to keep your medical condition at the same point that it is when the doctor stated you were at maximum medical improvement.  If your case is stationary the carrier will send out a notice that says you are stationary and will send out notices that award you the payment for the permanent disability and award the supportive care.

Your treating doctor can give the opinion that you have reached maximum medical improvement and give opinions as to the impairment and supportive care.  If the carrier accepts the treating doctor’s recommendations that is ideal.  However at times the carrier will decide to send you to an Independent Medical Examination (IME) with another doctor and that doctor will indicate whether he or she agrees with the determination that you are stationary and will give opinions as to how much permanent impairment and supportive care you should be awarded.  If this is different from your treating doctor’s opinion and you wish to appeal the determination of the carrier, you can Request a Hearing with the Industrial Commission.  

If the carrier closes the case using an IME to determine you have reached MMI, you can show the IME to your treating doctor, if your doctor does not agree with the determination that you have reached MMI, you can request a hearing with the Industrial Commission.  An Administrative Law Judge will then determine which doctor they find to be more probably correct and will determine if your case should be made stationary or not.  If your case is found to be stationary based on the opinion of a doctor that is not your treating doctor, always take the opportunity to request that your treating doctor review the other doctor’s opinion and find out if your doctor agrees with the opinions as to whether you require additional treatment, how much permanent impairment you are granted and your supportive care award.

For more information about Snow, Carpio & Weekley, visit www.workinjuryaz.com


Friday, May 12, 2017

What to expect at a Social Security Disability Hearing

What to expect at a Social Security Disability Hearing
By Nicholas Wearne, Associate Attorney

Social Security Disability hearings can be intimidating so this is a general idea of what to expect. 
First off, I tell people to arrive about an hour early.  You never know what traffic is going to be like.  Make sure you have researched the address the night before and you know where the hearing office is located.  I always meet with my clients in the half hour before hearing just to review their case and go over things one last time.

When you arrive you will check in with security and if you have an attorney you will wait for them.  About 5-10 minutes before the hearing begins a hearing monitor will come check on you to make sure you are there and to make sure everything is ready for the judge.  They generally leave and will come back once the judge is ready. 

Expect your hearing to last about an hour.  In the hearing room it will you, your attorney if you have one, the judge, the hearing monitor, and usually there will be a vocational expert.  The judge and your attorney will ask you a series of questions to get an idea of why you think you are disabled, to get an idea of what you do during the day, and to figure out what your past work was like.  The judge will them ask some hypothetical questions to the vocational expert.  Generally, you will not receive a decision from the judge at that time but he will conclude the hearing and send you his decision a month or so later in the mail.  On occasion the judge will end the hearing by letting you know what he or she is going to do.

If you have a hearing scheduled and you are nervous about how things are going to play out, contact our office for a free consultation.


Friday, May 5, 2017

How Long Does it Take To Get Benefits and What Resources are Available Until I Get a Decision?

How Long Does it Take To Get Benefits 
and What Resources are Available Until I Get a Decision?
By Nicholas Wearne, Associate Attorney

The answer to this question is one you are probably not going to like. As I have explained in prior blogs there are three levels of application.  The first two take about 4-6 months.  The third level of application is a hearing and it takes 1-1.5 years to get a hearing after you have gone through the first two steps.  Generally speaking, I tell people it takes about two years.  The process is an extremely long one and perhaps one of the most difficult things about it is you cannot be working while you wait.  You can work a little bit but consult with an attorney before trying to do so.  Your ability to work is very limited and if you work to much you will start your application period over again.

So what are you supposed to do while you wait?  How are you supposed to survive?  This the question I do not enjoy answering.  As far as healthcare goes, you can get on AHCCCS assuming that our new president elect does not try to scale back AHCCCS funding once he is in office.  As far as food goes, you can apply for and get on food stamps.  As far as shelter goes, this is often the hardest one.  Most of my clients are living with family and friends.  Some are in homeless shelters.  If you are in the beginning stages of applying for social security disability I would have some very open talks with your family members about what will happen if you are unable to keep the lights on or pay the mortgage as it likely it may come to that.  If you have a spouse that works, that is great. 

Finally, do not apply for unemployment though it may be tempting.  When you apply for unemployment you are certifying that you are able and looking for a job.  Social Security will hold this against you.  If you are applying for Social Security Disability and have questions about how to prepare for the long haul ahead, call Snow Carpio and Weekley or visit us on our website at www.workinjuryaz.com.

Friday, April 28, 2017

WORKERS’ COMPENSATION PAYMENTS

WORKERS’ COMPENSATION PAYMENTS
By Dennis R. Kurth, Associate Attorney
Workers' Compensation Specialist

A workers’ compensation claimant in Arizona should know exactly how and when indemnity benefits are paid under the statute.  First, on any case where time lost benefits are indicated, the carrier must get wage/payroll information from the employer and set the average monthly wage.
The average monthly wage is the basis for the payment of all indemnity benefits.  The AMW is presumed to be the claimant’s gross earnings in the thirty days before the injury unless there is some good reason to use an expanded wage base.  The claimant should understand that the AMW is not the amount of compensation payable monthly but that the maximum payment is always just two-thirds of the AMW during the period of the total disability, temporary or permanent.

Compensation is not paid for the first seven days after the injury unless the claimant’s disability continues for one week beyond the first seven days.  Compensation payments must be in the form of “…a negotiable instrument, payable immediately upon demand.” (a check)  (A.R.S. §23-1062(D)).  Electronic direct deposits into claimants’ accounts and prepaid debit card accounts are allowed at the claimant’s election.

Compensation for total temporary disability, where the claimant is on a no-work status, is payable every fourteen days under the statute.  The amount of each payment is determined by breaking compensation down to a daily rate by multiplying the average monthly wage by the factor .021918.  That figure is multiplied by fourteen to arrive at the amount of each check. If there are dependents, the claimant receives an additional $25.00 per month or .8219 dollars per day.  Some carriers, like The Hartford, pay temporary total compensation weekly but that is not required.

Compensation for temporary partial disability, where the claimant has been released to light work and may have some earnings below the average monthly wage, is calculated much differently.  First, the average monthly wage is divided by 30.416 to get the daily rate.  Then the daily rate is multiplied by the number of days in the period, usually thirty.  Next, any actual earnings are subtracted and finally the net figure is multiplied by .667 to arrive at the amount owed to the claimant.  If the claimant has no earnings to report, compensation would be the same as the daily rate for temporary total compensation.

Permanent compensation benefits are always paid once a month and vary depending on whether the claimant has a scheduled or unscheduled award.  Scheduled benefits are those set forth in the statute for permanent injuries to the limbs including fingers, toes, etc. as well as the eyes and ears (hearing).  Benefits for scheduled injuries are paid for a certain and limited number of months set forth in the statute and based on the numerical disability rating.  The monthly scheduled payments are paid at the rate of 50% of the average monthly wage if the claimant can return to regular work and 75% of the average monthly wage if the claimant cannot.


Compensation for permanent unscheduled injuries (affecting the back, shoulders or trunk of the body) is set by the Industrial Commission based upon an analysis of the claimant’s earning capacity.  A claimant who cannot return to regular work but can do a lighter, lower-paying job, receives 55% of the difference between his/her post-injury earning capacity and average monthly wage.  A person who is totally disabled, however, receives 66.7% of his/her average monthly wage.

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

HERNIAS IN ARIZONA WORKERS’ COMPENSATION

HERNIAS IN ARIZONA WORKERS’ COMPENSATION
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.