Workers Comp Hearings In Arizona - What to Expect

I always tell my clients not to be too nervous about their hearing at the Industrial Commission of Arizona.  But for someone who has never been in a courtroom, the hearing can be a very nerveracking experience.  If you know a little about what to expect, it may help calm your nerves, which may help your testimony before the Administrative Law Judge (ALJ) sound more believable. 

First, usually the only people in the courtroom are the injured worker, his or her attorney, the attorney for the insurance carrier, a court reporter, and the ALJ.  If either party has called any witnesses, they are in the courtroom at the beginning of the proceedings, but are usually sent out during the testimony of other witnesses.  Unlike in Superior Court, you don't need to stand up when the ALJ enters the room.  However, you should always address the judge as "Your Honor". 

The ALJ swears in every witness before they testify with an oath to tell the truth.  The injured worker is then asked questions by their attorney in what is called "direct examination".  Then the attorney for the insurance carrier has an opportunity to "cross examine" the witness.  The applicant's attorney then has one more chance to clarify anything he or she feels was not made clear during the cross examination. 

I always tell my clients to answer the questions to the judge, not to me.  I already believe them - the judge is the one they need to convince.  Also, it is important to remember that the court reporter is taking down everything that is being said to make a record in case either side wants  to appeal the judge's decision, so it is important to wait until the other person is done talking before you start answering.  Also, although the attorneys and the judge may joke around because they know each other well, I always tell my client to be very serious during the proceedings. 

Chad T. Snow is an attorney who practices exclusively in the area of workers compensation in Arizona.  He has done over 5,000 hearings at the Industrial Commission of Arizona.  With offices in Phoenix and Tucson, he can be reached at (602) 532-0700 or (520) 647-9000 or at his website of Snow, Carpio, and Weekley.

Employers Firing Injured Workers While on Light Duty

I've seen a very disturbing trend recently wherein unscrupulous employers and carriers take advantage of a recent change in the law to refuse temporary compensation to an injured worker.  The employer will offer "light duty" work to the injured worker, who accepts the accommodated employment.  The employer will then concoct a reason to fire the injured worker "for cause", and then the carrier will refuse to pay temporary partial compensation because they argue that the injured worker would have had work "but for" their own fault and for a reason unrelated to their work injury. 

The portion of the statute that is abused is 23-1044 which states that "If the employee is unable to return to work or continue working in any employment after the injury due to the employee's termination from employment for reasons that are unrelated to the industrial injury, the commission may consider the wages that the employee could have earned from that employment as representative of the employee's earning capacity." 

I almost always fight these cases tooth and nail as the reason the injured worker was fired is usually just a pretext to get the carrier out of liability for compensation.  The ALJ at the Industrial Commission can make a determination if the reason for the firing is legitimate or not.  The other reason I think this new tactic of carriers and employers is unconstitutional is that it injects an element of fault into what is supposed to be a no fault system.  I intend to take the first case I lose on this issue to the Court of Appeals or the Arizona Supreme Court to stop this insidious practice once and for all. 

Snow, Carpio, and Weekley are attorneys who practice exclusively in the area of workers (workmans) compensation in Phoenix and Tucson, Arizona.  They can be reached at (602) 532-0700 or (520) 647-9000 or on their website.
 

Surveillance in Arizona Workers Comp Claims

Free legal advice for the day:  if you just told the insurance carrier's doctor that your low back pain keeps you from doing just about everything and that you rarely leave your bed, don't go home and teach a karate class in your front yard.  Or lift 100 pound pieces of flagstone.  Or go to Mexico and smoke pot on the beach before you play volleyball.  If you tell the carrier's attorney at your deposition that you haven't worked in months, don't go straight from the deposition to your landscaping job.  Or to your catering job.  If you tell the judge at your hearing that you have to use your cane at all times to walk, don't go to a quinceanera and dance. 

These are all true stories of workers' compensation clients of mine who have absolutely screwed up their cases by NOT TELLING THE TRUTH!!! All of these activities were caught on video surveillance by investigators hired by the insurance company in work comp claims.  Remember the old axiom that "a picture is worth a thousand words"?  Well, the insurance companies sure believe that because they spend a lot of money trying to prove what a lying dirtbag all injured workers are by showing that how they present in the doctor's office or in court isn't how they really act in public.  The mere fact that the people were doing these things isn't necessarily what killed their cases - it's the fact that they lie about it, or act one way in front of a judge or doctor, and another way when they think they're not being watched. 

Many of my clients are downright indignant that they are subjected to such a gross violation of their privacy.  But it's perfectly legal.  Remember that anything you do in public isn't private and is subject to being surveilled by an insurance company investigator. 

Chad T. Snow is a workers (workmans) compensation attorney in Phoenix and Tucson Arizona.  He and his other associates can be reached at Snow, Carpio, and Weekley.

I Lost My Workers Comp Hearing - Should I Appeal?

Probably about 10% of the potential new clients that we meet with tried to represent themselves before the Industrial Commission of Arizona and bring in an unfavorable decision from the Administrative Law Judge.  This is kind of like going to a surgeon after trying to do the surgery yourself and failing...

Generally speaking, your best "bite at the apple" in a workers (workmans) compensation claim is at the hearing with the ALJ.  That is the only time that you can submit evidence and make a record of why you think you should win on that particular issue.  If you lose, you certainly have a right to appeal - the first step is by filing a request for review with the same judge that made the unfavorable decision.  Good luck trying to convince the judge that they were wrong about your case all along and should admit it and change their mind!  In 11 years practicing at the Industrial Commission, I've been successful on exactly 3 requests for review.  I very rarely request review following an unfavorable decision.

If the ALJ stands by their original decision and issues a Decision Upon review affirming their original decision, you can file a Petition for Special Action with the Arizona Court of Appeals.  However, you cannot submit additional evidence or make new arguments.  You are usually limited to trying to prove that the ALJ committed some error either in admitting evidence or applying the law to the facts of your case.  In those same eleven years, I've won exactly ONE case at the Court of Appeals.

Bottom line, get an attorney at Snow, Carpio, and Weekley BEFORE your first hearing at the Industrial Commission.  Most of those clients who come to me with unfavorable decisions could have had a different outcome had we been able to help them from the beginning. 

Snow, Carpio, and Weekley are attorneys with offices in Phoenix and Tucson who represent injured workers before the Industrial Commission of Arizona.  They have represented thousands of Arizonans injured on the job. 

What Happens at an Industrial Commission Hearing?

For many injured workers, a hearing at the Industrial Commission of Arizona may be their first time ever in a courtroom.  It can be a very intimidating experience.  I always tell my clients before hearings that, generally speaking, Industrial Commission hearings are very informal, and they have no reason to be nervous. 

The hearings are conducted by Administrative Law Judges (ALJ), who are judges who hear only workers' compensation claims and have special knowledge of the workers compensation Act and laws.  Their is no jury and all cases are decided by the judge.  There is always a court reporter making a record of everything that is said at the hearing. 

All witnesses are sworn in to tell the truth by the ALJ.  The injured worker is almost always the first witness.  If they are represented by an attorney, their attorney will ask them questions first, which is called "direct examination".  That is followed by "cross examination" by the insurance carrier's attorney, which is usually to get testimony out of the applicant that is unfavorable to his or her case.  The applicant's attorney then has a second chance to clarify anything that was covered during cross examination. 

If the case involves the credibility of the injured worker, such as in determining whether an injury took place at work or was reported on time, both sides can call witnesses to testify on their behalf.  If the issue is a medical issue, such as whether or not a surgery is necessary or if the condition resulted in a permanent impairment, both sides can call medical experts (doctors) to testify on their behalf.  The doctors usually testify at a "further hearing" by telephone. 

After all the testimony is taken, the ALJ usually issues a written decision within 30 days of the last hearing.  Because the insurance carrier is ALWAYS represented by an attorney, it is advisable for the injured worker to be represented as well.  Most workers comp attorneys work on a contingency basis, which means that they only charge a fee if the case is won.  If you have any questions about your Industrial Commission hearing, please schedule a free consultation with our Snow, Carpio, and Weekley Workers (Workmans) Compensation Attorneys. 

Chad Snow, Alex Carpio, and Brian Weekley are attorneys who practice Workers Compensation law at the Industrial Commission of Arizona.  They have offices in Tucson and Phoenix and can be reached at (602) 532-0700 or (520) 647-9000.