Friday, September 22, 2017

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS
By Attorney Dennis Kurth
Snow, Carpio & Weekley

The Industrial Commission was given jurisdiction to approve settlements of workers’ compensation cases by virtue of a Supreme Court case in 1986[1] followed by the adoption in 1987 of a set of administrative rules for ALJ’s to follow in approving settlement agreements.

A bona fide dispute and a written settlement agreement signed by the parties with the claimant certifying that they have read and understand the terms of the settlement agreement and were not signing under duress or coercion, are required.  (ICA policies and procedures as published in the ICA Manual, however, do not have the force and effect of the Industrial Commission Rules of Procedure or the workers’ compensation statute).

The question of whether a purely verbal agreement to settle a workers’ compensation case is enforceable against an insurance carrier arose in the context of a claimant who died in a car crash while on his way to his attorney’s office to sign a settlement agreement.[2] The claimant’s heirs sought to enforce the verbal agreement but the carrier, of course, claimed that it could not be enforced because the written agreement had not been signed.

The Industrial Commission, in Tabler, refused to enforce the verbal settlement agreement and the claimant’s heirs appealed.  The Court of Appeals held that a verbal agreement could be enforceable if the parties intended to be bound by the verbal agreement and set aside the Industrial Commission’s award.  The case was remanded to the Industrial Commission to hold hearings to determine the intent of the parties.  In an important footnote, however, the Court held that it was not addressing the issue of whether a verbal settlement could be enforced against an injured worker. 

The case was then settled between the heirs and the insurance carrier.  Since then no changes have been made to the statue or the Industrial Commission rules regarding settlements.  Still, except for the Industrial Commission policies and procedures, no written agreement is required.

Recently, in a memo decision, the Court of Appeals held that an oral settlement could be enforced against the claimant who had simply changed her mind about settling her case and refused to sign the written settlement agreement.[3] In the True Value case, the claimant, whose attorney had withdrawn when she changed her mind about the settlement, was unrepresented in the Court of Appeals and did not even file an answering brief, thereby confessing error.  In addition, the Court felt that, “on this record”, the verbal agreement should be enforced.

The True Value case, even though not a legal precedent, creates a dilemma for claimants, represented or unrepresented. While the carriers and their attorneys, in euphoria over the ruling, will seek to enforce verbal settlements, claimants and their attorneys must now be extremely cautious in settlement negotiations to anticipate every eventuality that could affect their decision as they may not have the luxury of reconsidering their decision before the settlement documents arrive.

True Value will probably not be the last word in the enforce-ability of verbal settlements against claimants and should not be taken as such.  It would be very bad policy for the Industrial Commission to follow for many reasons including that facts can change quickly and injured workers should not be held to verbal agreements under the workers’ compensation law, which is solely designed to help them, until they have read and understood the language of the settlement agreement. 

All claimants contemplating settling their cases should seek the advice of experienced counsel first.  For claimants’ attorneys, the best policy is to advise the carrier or their attorney that they do not intend to be bound by the settlement until the C & S is fully executed and the claimant certifies that they understand all the terms.


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.







[1] Safeway Stores v. Industrial Commission, 152 Ariz. 42, 730 P.2d 219 (1986).
[2] Tabler v. Industrial Commission, 202 Ariz. 578 (App. 2002).
[3] True Value Company v. Industrial Commission, (Ct. App. 10/4/16).

Friday, September 15, 2017

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION
By Attorney Dennis Kurth
Snow, Carpio & Weekley

Among workers’ compensation practitioners, the ALJ assigned to one’s case has always been an important factor in the attorney’s strategy and expectations. Over time, not even a long time, most ALJ’s tend, fairly or not, to get labeled as either friendly to one side or the other or prone to resolve certain issues by compromise rather than strictly following the evidence or law.  The administrative process for obtaining a different ALJ was archaic, awkward and grossly out of sync with the civil system.

A legislative change to the workers’ compensation statute in 2016, however, made a party’s entitlement to one change of ALJ a matter of right, aligning it more closely to the procedure in the civil system.

Before last year’s change, in order to get a change of ALJ, a party had to file, within thirty days of the ALJ assignment, an affidavit alleging that the assigned ALJ had a personal conflict of interest or was actually biased and prejudiced against them.  That  usually required the application of a bit of fiction which strained ethical boundaries as well as created an awkward dynamic with the particular ALJ that might, and often did, require consecutive affidavits for every case assigned to that particular ALJ or run the risk of retribution in a later case.

Although the fact that a particular ALJ had a propensity for ruling in favor of claimants or carriers would never constitute proof of actual bias and prejudice, the Chief ALJ had always considered the filing of the affidavit to be a sufficient basis to grant a change of ALJ anyway.

When finally the affidavit process became a weapon for defense attorneys to disqualify ALJ’s who wouldn’t grant continuances on hearings or other accommodations, the process was abused and the Chief ALJ had had enough.

In the new statute, each party is entitled to one change of ALJ as a matter of right if the notice of change is filed within thirty (30) days of the issuance of the notice of hearing.   (See A.R.S. §23-941(I)).  Additionally a party can still file an affidavit for change of ALJ for cause based on a listed conflict of interest or for bias and prejudice even after exercising their automatic strike. They will, however, have to be prepared to prove that the ALJ is conflicted or actually biased and prejudiced or the change of ALJ will not be granted.

The new procedure for changing ALJs is a welcome development that eliminates the fiction of alleging that an ALJ is actually biased and prejudiced and hopefully will smooth relations between workers’ compensation attorneys and ALJs in the long run.


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, September 8, 2017

Social Security Disability and Early Onset of Alzheimer's Disease

Social Security Disability and Early Onset of Alzheimer's Disease
By Attorney Nicholas Wearne
Snow, Carpio & Weekley


There are an estimated 5.4 million in United States living with Alzheimer's disease.  The disease is associated with old age but there are a unfortunate few who are affected by the disease before the age of 65 during their prime working years.  Those who are affected by the disease before age 65 are diagnosed with Early Onset of Alzheimer's Disease.  The disease is terminal and it cannot be stopped or cured.  While at first a person may be able to work the disease will eventually take over affecting a person’s work life as well as their personal lives.

Normally, to apply for social security disability, you must got through a rigorous application process and must prove that you are unable to work.  Proving that you are unable to work involves getting doctors notes stating what your work restrictions are, hearings, and what can often be a vicious back and forth with the Social Security Administration.  Fortunately for those with Early Onset of Alzheimer's Disease there is a compassionate allowances list.  This is a list of serious, terminal, and rare diseases created by the Social Security Administration and it includes Early Onset of Alzheimer's Disease.  If you have a disease on the list of compassionate allowances you automatically qualify for social security benefits by law.  For a complete list of the compassionate allowances check out the social security website.  https://www.ssa.gov/compassionateallowances/conditions.htm


If you or a love one have Early Onset of Alzheimer's Disease and yet are still being denied benefits by the Social Security Administration or if you have any condition on the compassionate allowances list and would like help with your application, please contact Snow, Carpio, and Weekley for a free consultation.


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, September 1, 2017

Full and Final Settlements

Full and Final Settlements
By Partner/Attorney Brian Weekley
Snow, Carpio & Weekley


On May 8, 2017, Governor Ducey signed Senate Bill 1322, which will become effective November 1, 2017.

SB 1322 allows full and final settlements of workers' compensation claims. This is the first time that such settlements will be possible in Arizona. SB 1332 also provides for travel expenses for injured workers for medical treatment located over 25 miles from their homes.

In the period prior to 10-31-17, injured workers have had limited ability to globally resolve their claims. Any settlement of supportive care has been subject to future reopening by the injured worker.

From 11-1-17 forward, the parties will be able to resolve both the medical and indemnity portions of their claims " once and for all." 
However, these full and final settlements will have serious ramifications for the uninformed injured worker. Valuation of indemnity and future medical is critical, as will be the all important role that Medicare plays in resolved claims.

We urge any injured workers or their families to contact to contact us to discuss ramifications and strategies under this fast approaching changed landscape.


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, August 25, 2017

Facet Mediated Pain & the ODG....

Facet Mediated Pain & the ODG in AZ Workers' Compensation
By Founding Partner/Attorney Chad Snow
Snow, Carpio & Weekley

           

More and more, spine specialists are pointing to the facet joints as possible pain generators in low back injuries.  The facet joints are the joints in your spine that make your back flexible and able to bend and twist.  Like any other joint in the body, they are susceptible to injury.  

The problem with diagnosing facet joint injury and pain is that there is no diagnostic test that specifically without doubt demonstrates a facet injury.  So doctors are left to other methods of diagnosis such as the physical examination and subjective complaints of the patient.  A physical exam where pain is greater in lumbar spine flexion and rotation than extension can be indicative of an injury to the facet joints. An additional diagnostic tool that physicians can use for facet pain is a medial branch block.  This is where the nerve that provides feeling to the joint is blocked with an anesthetic.  If this gives temporary pain relief greater than 70%, the facet joint can be pointed to as the pain generator.  

A growing list of pain management doctors treat facet mediated pain with a procedure called a radio frequency ablation, which “burns” the nerves that innervate the facet joint.  This procedure can provide relief for about 18-24 months until it needs to be repeated.  The Official Disability Guidelines, which are evidence based guidelines for chronic pain used at the Industrial Commission, are generally supportive of this method of diagnosis and treatment of facet joint injury and pain. 



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, August 18, 2017

Worker’s Comp Cases are like Fingerprints.....

Worker’s Comp Cases are like Fingerprints, no two are the same…
By Attorney Erica Gonzalez-Melendez
Snow, Carpio & Weekley

Occasionally I get the question from a client:  Why did their neighbor’s cousin who barely had a back injury recover triple figures in his case but they who lost a finger get so much less in permanent compensation? 

First of all, every state in the country has a different workers compensation system with different rules for compensating injuries. But even in Arizona no two cases are the same, the cases will vary depending upon the body part which is injured, the job duties prior to the injury, the work restrictions that a client is left with at the end of the injury, the amount of impairment a doctor gives, and the average monthly wage of the worker.   

Even if two different workers have the exact same injury, losing a hand for example, the compensation would end up depending on their work duties before the injury and how much they were paid at the time of injury (the average monthly wage).  With two workers with the same type of back injury, the final compensation will depend upon the permanent restrictions given by a doctor, the education level of the worker, work history, average monthly wage at the time of injury and the job duties at the time of the injury. 

It’s important to think critically about the work that anyone is doing on your behalf, usually your worker’s compensation attorney is working hard to get the maximum compensation in your case.  Obviously if you have a question about why your case is so different from another injured worker, you should ask your attorney. 



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, August 11, 2017

Average Monthly Wage - Get it Right!

Average Monthly Wage – Get it Right!
By Attorney Erica Gonzalez-Melendez
Snow Carpio & Weekley

One of the most important aspects of your case is average monthly wage. All of your compensation while your case is open and active depends upon your average monthly wage.  At the close of your case, if you get a permanent impairment, the amount of compensation you are paid for the impairment depends upon your average monthly wage.

Your average monthly wage is the amount of money you earned in the 30 days prior to your injury. The goal of setting the average monthly wage is to get a picture of the amount you were earning at the time of your injury.  If you have more than one job, the earnings from the second job would count as well.*  Sometimes, the amount you earned in the 30 days prior to your injury isn’t an accurate reflection of your earnings on your date of injury.  There are lots of reasons that this may happen: maybe you worked less hours or had an unusually high amount of earnings in the days prior to your injury; you could’ve started the job two weeks prior to your injury and therefore there are not 30 days to count prior to the injury.  If it’s the case that you had an unusually high or low amount of earnings in the month prior to the injury, then the Industrial Commission will look at an “expanded wage base”, meaning, looking at earnings over a year or six months, whichever is more appropriate.  If you very recently started your job, they may look at the earnings of other employees at your company who have a similar job to yours.  If you recently had a change in your pay rate, the commission will look at your pay from the day of your raise forward.

As you can see, the average monthly wage is a crucial part of your case and it’s important to get it right.  If you have questions about how your wage was set, you should consult with a worker’s compensation attorney.  Both sides have 90 days to protest a Notice of Average Monthly wage set by the Commission so it’s important to consult with an attorney early in your case regarding this issue.
*The earnings from the second job would count if the second employer is covered by the Worker’s Compensation Act.


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.