Showing posts with label Reopening a Closed Case. Show all posts
Showing posts with label Reopening a Closed Case. Show all posts

Friday, March 3, 2017

Re-opening Your Claim

Re-opening Your Claim
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist

One of the best features of the Arizona Workers’ Compensation law for claimants is the right to reopen a closed case for active medical treatment and temporary compensation anytime during the injured worker’s lifetime.  The statute requires that, in order to reopen a case, the claimant must prove that he/she has some new, additional or previously undiscovered condition and some objective, positive findings on clinical examination or imaging studies that are related to the original injury and were not present when the case was closed.

The ability to reopen an old case is very important to the injured worker whose knee has deteriorated over time and has developed severe arthritis since an industrial meniscectomy or whose back or neck has developed arthritis (‘adjacent level disease”) above or below the level of a fusion surgery.  In these examples there is usually a chain of causation from the original injury and surgery to the subsequent degenerative condition.  Such connection must, of course, be established by competent medical evidence.

Once these cases are reopened the claimant is able to have treatment, including surgery, completely paid by the workers’ compensation carrier and can again receive temporary and later, permanent, compensation indemnity benefits paid for any attending disability.  It goes without saying, of course, that carriers usually resist reopenings and put claimants to their full burden of proof.

While generally, one might think that a subsequent and independent traumatic injury to some body part previously injured on the job and treated surgically might not sustain reopening of the worker’s compensation case, that is not always the case and workers’ compensation practitioners would do well to acquaint themselves with the law in that regard.

In a seminal case[1] from many years ago an injured worker tore a meniscus in his knee and underwent a meniscectomy.  Several months later, while playing frisbee with his friends, the claimant tore his anterior cruciate ligament and needed surgical reconstruction. The carrier denied liability for the torn ligament and surgery.

The claimant’s doctor testified that, while playing frisbee caused the torn ACL, it would not have occurred had the knee not been weakened by the meniscectomy.  He also, along with the claimant’s physical therapist and frisbee teammates, testified that it was not unreasonable for the claimant to have been playing frisbee despite the prior surgery.

According to the Arizona Court of Appeals, the claimant had established a right to have the ACL reconstruction surgery covered under the industrial claim even though the industrial injury did not cause the ACL tear as long as it was established that the weakness of the knee from surgery made it more susceptible to further injury and the claimant’s subsequent activity was reasonable, i.e., not something that his doctor told him not to do.

The Klosterman case, though not technically a reopening case, is more commonly applicable in reopening situations where there might be a long interval between the industrial injury and surgery and the subsequent injury.  In the context of a prior industrial back surgery, for example, a conscientious practitioner would do well to inquire whether a new, traumatically-induced herniated disc above or below the surgical level, ostensibly due to say, bending over to pickup a folding chair for example, might have been partially caused by a weakness of the spine due to removal of some part of the vertebrae in the prior laminectomy.  If so, reopening of the workers’ compensation case might be indicated and a petition to reopen should be filed.

In these subsequent injury situations, it is important to realize that an intervening, traumatic injury off work does not always break the chain of causation from the original injury and, in situations like those described above, some contact with the attending surgeon to investigate the matter is called for.

[1] Klosterman v. Industrial Commission, 155 Ariz. 435, 747 P.2d 596 (App. 1987).

Thursday, June 16, 2011

General Worker's Comp Information

Arizona Workers Compensation Information

The attorneys at Snow and Carpio, PLC are an experienced advocate for the rights of Arizona workers. Arizona law requires almost all employers to carry workers compensation insurance. This insurance pays for medical treatment, rehabilitation therapy, lost wages, and some other expenses in the event a worker is injured on the job. While this coverage is for the purpose of helping workers who suffer injuries, it is not always easy to obtain the compensation to which an employee is entitled. To get the full amount of compensation you are entitled to and you deserve, contact Snow and Carpio, PLC for a free case evaluation.

No Fault System

One of the most important aspects of the workers compensation system is that it is a no fault system. Benefits are neither increased nor decreased by whose fault caused the injury. If the injury arises out of and in the course of employment it should be covered. The elimination of any fault issues is one of the ways the system has been designed to insure the delivery of prompt benefits without dispute.


Worker’s compensation pays limited benefits. Generally, any medical expense related to the injury must be covered. You are also entitled to a percentage of your lost wages for time off work. In some cases, there is also a permanent disability benefit. In exchange for giving up full compensation for your injuries and losses the system has been designed to provide you speedy benefits. However, sometimes insurance carriers abuse the system with frivolous delays and denials. The hearing process instead of being used for resolutions of good faith disputes gets used as a built in delay mechanism to coerce settlement or claim abandonment. This can be worker’s compensation bad faith.

Reporting a Workplace Injury

Once an on-the–job injury has occurred, the employer has the right to be notified so that it may investigate the circumstances of the injury, and provide treatment to minimize the injury. This legal requirement operates in the interests of both parties. A prejudicial failure to report an injury may act to bar the entire workers compensation claim, therefore it’s important to report an injury to an employer as soon as you reasonably believe you have suffered an injury that will involve medical care or time off work.

Filing an Arizona Workers Compensation Claim

It is also important to file an Arizona workers compensation claim as soon as possible, because it generally takes about 30 days to receive an initial determination of the insurance carrier’s acceptance or denial of a claim. The workers compensation claim may be filed with the Industrial Commission of Arizona in one of two ways. The injured worker may file the claim directly with the Arizona Industrial Commission or the physician or hospital attending an injured worker will do so, as they are required to report any industrial accidents to the Industrial Commission.

Claim Acceptance or Denial

Once the Industrial Commission of Arizona (ICA) receives the filed claim, it will notify the employer’s insurance carrier of the claim. There is no limit for the ICA to perform the notification, but it generally takes 7-10 days. Once the insurance carrier is notified of the claim, it has 21 days to formally accept or deny the claim. If the carrier does not respond to the claim within those 21 days, the carrier is responsible to provide benefits from the date of notice as if it had accepted the claim until such time it issues a formal denial.

Workers’ Compensation Hearing Process

If a claim is denied, a hearing request must be filed with the Industrial Commission of Arizona. The claim will then be set for hearing before an Arizona Administrative Law Judge. Both sides have a right to present evidence, including witnesses, medical records, and physician testimony. Once an issue becomes contested and the hearing process has begun, it generally takes a minimum six months and frequently up to one year for resolution by a judicial award. Having an experienced workers compensation lawyer at the hearing is often critical, as there are numerous issues that can be disputed and be presented at hearings in a workers’ compensation claim.

Medical & Disability Stages

Generally, there are three stages to an accepted workers’ compensation claim; temporary total disability (TTD), temporary partial disability (TPD), and permanent partial disability (PPD). Each of these stages is based upon medical decisions. Stage changes will be based on the opinions of your treating physician or from the carrier’s “independent” medical examination physician. While not all medical examiners are biased, carriers will sometimes schedule so-called “independent” medical examinations, with physicians who are reputed to provide biased opinions in favor of insurance companies, in order to avoid medical and disability benefits to its insured workers. This is one of the ways in which disputes arise which need to be resolved through the hearing process, or in some circumstances, through a bad faith action.

Temporary Total Disability (TTD)

TTD means that you are temporarily, totally disabled or unable to work because of your injury. A physician has documented that the injured worker is unable to work, either because time is needed to diagnose the injury and the physician does not want to risk further injury, the injury needs time to heal, or any other reasoning in the physician’s opinion. During this stage, the industrial carrier should pay the totality of medical expenses related to the industrial injury that are provided by the approved physician.

In addition, it should pay 2/3 of lost wages, with checks coming in two-week intervals. The highest wage recognized by the Workers Compensation Act depends on the year you were injured. For 2009 injuries, the highest wage recognized by law is $3,600.00 per month, and therefore the maximum disability benefit payable is $2,400.00 per month. An insurance carrier may dispute a TTD status with the opinion from its own physician that the worker is capable of working. In that event a hearing may be necessary.

Temporary Partial Disability (TPD)

TPD means that you still need medical care, but a physician feels that you are able to return to the duties of your regular work, or perhaps modified or light duty. During this stage, the carrier continues to pay the totality of medical expenses from the approved physician, but now pays 2/3 of the difference between your established average monthly wage (AMW) and the wages you are “able to earn” within your medical restrictions. This is an issue that is litigated with increasing frequency. The worker will often contend that his employer does not have light duty available, and that he has looked for other light duty jobs without success, and therefore, is entitled to continuing full disability benefits. Carriers may respond that the worker could have found other light duty jobs, and the carrier will then reduce disability benefits, taking credit for wages it claims the worker was able to earn, even if no wages were earned. Denial of disability benefits is a tactic sometimes used to force desperate workers to settle for less than what is owed. Disability checks during this stage must be paid at least every 30 days.

Permanent Partial Disability (PPD)

PPD means that the case has closed from further active medical care, but that the worker has suffered a permanent disability as a result of the injury. Either the worker’s physician, or the carrier’s physician, has stated an opinion that the patient has received maximum benefit from medical treatment, and that further treatment will not provide any additional permanent improvement to the injury. Serious injuries may then be awarded a permanent disability through a permanent impairment rating.

Permanent impairments may or may not pay permanent disability benefits. There are two types of permanent disabilities, scheduled and unscheduled. A scheduled disability will pay a “scheduled” amount of money for the disability, without regard to the impact of that disability on your life or ability to work. An unscheduled disability will pay lifetime benefits, on a monthly basis, based on a loss of earning capacity (LEC). Generally, if a worker can return to date-of-injury wages, there is no LEC, and no disability benefit is paid. If the worker can only return to lesser wages, because of the injury, then a disability benefit based on 55% of the recognized loss is paid monthly. These are frequently disputed issues in Arizona workers’ compensation cases.

Change of Address

All clients must notify our office of a change in address or phone number immediately so that as required by law, it can be reported to the Industrial Commission of Arizona and the Insurance Carrier and any/all interested parties to the claim. It is also very important because as your attorney, we must have current information on file for you so that we may contact you regarding Depositions, Hearings, Medical Appointments and any information relating to your case.


Clients must be aware that Insurance Carriers can and will conduct surveillance on clients to confirm that the injuries and restrictions they are claiming are true. Clients must be aware that all of their actions may be videotaped and used as part of the court process.

Supportive Care

Serious injuries in Arizona may be awarded supportive care. This is generally a right to return to the physician several times a year to receive medications, or other minor treatments for flare-ups or exacerbations of the residual injury. Under supportive care, the claim remains closed, but treatment is authorized to the injured worker. In addition, once the claim has been accepted, if that medical condition is ever found to present something new, additional, or previously undiscovered from the time the claim was closed, the claim may be reopened for additional medical care to treat that condition. Reopening begins the process for payment of medical and disability ben

To speak with either myself or another attorney at the firm, please call and schedule your free consultation. You can reach us at 602-532-0700 or contact us through our website at Snow, Carpio, and Weekley.

Tuesday, May 3, 2011

Injured Worker's Duty to Inform Carrier of Surgery

Something we've run into recently on a couple of cases that bears mentioning here is the duty that a worker injured on the job in Arizona has to notify the employer's insurance carrier of a pending surgery at least 10 days before it takes place.  This general rule is true for any medical treatment for which the carrier may ultimately be responsible.  It is true even if the carrier has denied your claim or has closed out your accepted claim. 

Many of our clients who have denied or closed claims decide to go ahead and proceed with their surgery through their private health insurance rather than wait the 8-12 months that it can sometimes take to get a decision through the Industrial Commission.  That is fine - if the claim is ultimately accepted or reopened, the industrial carrier simply reimburses the private insurance company for bills they've paid.  However, if the injured worker fails to give the workers comp carrier adequate advance notice of the surgery, the carrier can be relieved of their liability to pay for the surgery or other treatment.  The rationale for this is that the carrier has a right to have the worker evaluated by a physician of their choosing prior to undergoing the surgery.  Think of your injured body part as "evidence" - they have a right to examine that evidence before you change it. 

If you fail to give adequate notice and the carrier is relieved of having to pay for the surgery, they may still be liable for compensation and other post-surgical expenses after the date that they are notified. 

Chad T. Snow is a workers (workmans) compensation attorney in Arizona.  He has offices in Phoenix and Tucson. He and his associates at Snow, Carpio, and Weekley can be reached at (602) 532-0700 or (520) 647-9000. 

Tuesday, January 4, 2011

Can I Reopen an Arizona Workers Compensation Claim?

Oftentimes I hear about what a crummy workers compensation system we have here in Arizona.  I always tell my clients that one of the bright spots of our Workers' Compensation Act is the lifetime right to Petition to Reopen a claim in Arizona

A.R.S. 23-1061(H) provides that "On a claim that has been previously accepted, an employee may reopen the claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting the reopening of the employee's claim upon the basis of a new, additional or previously undiscovered temporary or permanent condition, which petition shall be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim." 

In other words, if the claim was at one time accepted, and was subsequently closed, an injured worker has a lifetime right to petition to reopen the claim if they can show that there has been an objective change in the condition.  This is usually done either by a doctor saying that the physical exam findings are different, or through a diagnostic study such as an x-ray, MRI, or EMG.  The change has to have occurred at some point between the date the claim was last closed and the date of the Petition to Reopen (called the "comparative dates").  The statute specifically says that a claim "shall not be reopened because of increased subjective pain if the pain is not accompanied by a change in objective physical findings."  So you can't just say your pain has gotten worse and try and reopen your claim. 

If your doctor has recommended diagnostic testing in order to determine if there is an objective change in the condition, the carrier can be responsible for that as well. 

Any questions about a Petition to Reopen an Arizona workers compensation claim can be directed to the Attorneys at Snow, Carpio, and Weekley

Chad Snow, X. Alex Carpio, and Brian Weekley are attorneys with offices in Phoenix and Tucson.  They have represented thousands of injured workers before the Industrial Commission of Arizona.  They can be reached at (602) 532-0700, (520) 647-9000.