Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law

Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law

By Partner/Attorney Brian Weekley

Snow, Carpio & Weekley

These days, there are many firms that advertise as handling Arizona Workers' Compensation claims. Any lawyer, or law firm, can make these claims. Many firms that specialize in Personal Injury advertise for and take workers' compensation cases. Why should you choose a specialty firm over one of the Personal injury firms?

First, workers' compensation law is a completely different animal than personal injury law. Workers' Comp is a no fault system where the injured worker is paid a percentage of his wage loss for temporary and permanent benefits. All of the medical expenses are covered, with no copays or deductibles.

Personal Injury law is structured as a system where medical bills are gathered, fault is assessed and debated, and demand is made for damages. Most cases are settled with a full release of liability.

Workers' Comp, on the other hand, is designed for long term care of the injured worker. Injured workers should be extremely careful before " settling. " (Actually, the exact term is Compromise and Settlement, and represents a temporary agreement as  to an injured workers' entitlement to benefits, said agreement subject to future modification by reopening, rearrangement and motions).
Settlement amounts act as a credit against future benefits.

Generally, a personal injury firm's model is to settle cases and move on. You don't want this model if you want to maximize the long term benefit of your workers' comp claim. What you do want is protection in the future. We can resolve claims and maintain medical care into the future. This is of benefit to many clients, and is part of our philosophy of " having our client's backs" for the duration of their claim.

Another factor is bookkeeping. When you retain an attorney, all documents , checks and communications are directed to the law firm. The checks must be placed in trust and disbursed to the injured worker. Our firm charges a minimal fee on ongoing benefits. Many PI firms and competitors charge as much as 25% of every single check received on behalf of the injured worker. This often results in overcharging. Beware.

The State Bar of Arizona certifies certain specialties, and workers compensation is one of those specialties. You pay no more for a firm with certified specialists, and in many cases ( see above) the injured worker pays less. Our firm has two specialists, including myself. Many PI firms have no specialists and saddle the client with a sometimes very inexperienced attorney. Experience matters, especially in a system where medical evidence is so vital.

An injured workers' unresolved legal issues ultimately go before a Judge at the Industrial Commission of Arizona. Having an attorney who has done hundreds and thousands of these hearings makes a difference.

I hope that this brief post is helpful to injured workers and their loved ones. Contact us any time for a free consultation. Thank you.

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.

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.

CHOICE OF DOCTORS

CHOICE OF DOCTORS

By Chad Snow, Founding Partner

WE HAVE WRITTEN SO MANY BLOGS ON THIS TOPIC BECAUSE IT IS ONE OF THE MOST IMPORTANT ASPECTS OF WORK INJURY CASES IN ARIZONA.  

THE INJURED WORKER’S TREATING DOCTOR IS OFTEN THE MOST IMPORTANT PART OF A SUCCESSFUL CLAIM.  THE TREATING DOCTOR DECIDES WHAT TREATMENT IS NEEDED FOR THE INJURY, WHEN THE WORKER CAN RETURN TO MODIFIED/LIGHT DUTY, WHAT PERMANENT DISABILITY THE WORKER GETS, AND THE AMOUNT OF SUPPORTIVE MEDICAL CARE THAT IS NEEDED IN THE FUTURE.  

AT SNOW, CARPIO, & WEEKLEY, WE HAVE A NETWORK OF TREATING DOCTORS IN ALL SPECIALTIES WHO HAVE VAST EXPERIENCE IN INDUSTRIAL MEDICINE.  IF YOU HAVE A DOCTOR WHO DOES NOT TREAT MANY INJURED WORKERS, HE OR SHE MAY NOT BE AWARE OF WHAT NEEDS TO BE DONE TO HAVE A SUCCESSFUL WORKERS COMP CLAIM.  

EVEN WORSE, IF YOU HAVE A DOCTOR WHO GETS A LOT OF THEIR BUSINESS FROM INSURANCE COMPANIES, THEY MAY BE MORE INTERESTED IN DOING WHAT IS IN THE CARRIER’S INTEREST THAN YOURS.  

CHECK WITH US ANYTIME YOU HAVE A QUESTION ABOUT YOUR TREATING DOCTOR.  REMEMBER THAT IN MOST CASES THE INJURED WORKER CAN CHOOSE THEIR OWN DOCTOR, SO YOU’RE NOT REQUIRED TO TREAT WITH WHO THE INSURANCE COMPANY OR YOUR EMPLOYER SENDS YOU TO.  

COURT OF APPEALS

COURT OF APPEALS

By Chad Snow, Founding Partner

CLIENTS OFTEN ASK WHAT WE CAN DO IF THEY LOSE AT THEIR INDUSTRIAL COMMISSION HEARING.  THE ANSWER MOST OF THE TIME IS “NOT MUCH”.  

HOWEVER, THERE ARE APPEAL RIGHTS FOLLOWING AN UNFAVORABLE DECISION AT THE ICA.  THE FIRST STEP IS TO FILE A “REQUEST FOR REVIEW” WITH THE JUDGE THAT MADE THE UNFAVORABLE DECISION.  THIS IS A RATHER INFORMAL APPEAL THAT SHOULD POINT OUT TO THE JUDGE WHY YOU THINK HIS OR HER DECISION IS INCORRECT.  THESE ARE GENERALLY UNSUCCESSFUL – THINK ABOUT IT – HOW LIKELY IS THE JUDGE TO ADMIT THAT THEY WERE WRONG?  

THE JUDGE THEN ISSUES A DECISION ON REVIEW EITHER OVERTURNING OR UPHOLDING THEIR ORIGINAL DECISION.  THE INJURED WORKER THEN HAS 30 DAYS TO FILE A PETITION FOR SPECIAL ACTION WITH THE ARIZONA COURT OF APPEALS.  

THIS STARTS THE PROCESS OF THE APPEAL.  

LATER, THE PERSON APPEALING THE DECISION HAS TO FILE A LEGAL BRIEF WITH THE COURT EXPLAINING THE FLAWS IN THE ALJ’S DECISION.  THIS ARGUMENT SHOULD BE LIMITED TO LEGAL ERRORS IN THE DECISION SUCH AS THE CONSIDERATION OF EVIDENCE OR MISAPPLICATION OF THE LAW.  FACTUAL ISSUES SUCH AS WHICH DOCTOR’S OPINION IS MORE LIKELY CORRECT ARE ALMOST ALWAYS UPHELD BY THE COURT OF APPEALS. 

I’VE HAD SEVERAL CASES AT THE COURT OF APPEALS OVER THE YEARS.  THEY ARE VERY TIME CONSUMING AND DIFFICULT TO PURSUE.  HOWEVER, THE COURT WILL OVERTURN CASES WHERE OBVIOUS LEGAL ERRORS OR ABUSES OF DISCRETION HAVE OCCURRED.  

ANYONE CONSIDERING AN APPEAL TO THE COURT OF APPEALS SHOULD CONSULT WITH AN ATTORNEY WHO HANDLES EXCLUSIVELY ARIZONA WORKERS COMPENSATION CASES.  

DON’T BLAME YOUR LAWYER

DON’T BLAME YOUR LAWYER

By Chad Snow, Founding Partner

HAVING A WORK INJURY IS FRUSTRATING.  WITHOUT ANY WARNING THE INJURED WORKER’S INCOME IS CUT OFF, HE OR SHE IS IN PAIN, AND THEIR ENTIRE FAMILY AND SOCIAL LIFE IS DISRUPTED, SOMETIMES PERMANENTLY.  LET ME START OFF BY SAYING THAT IT IS ALWAYS A GOOD IDEA TO CONSULT WITH AN ATTORNEY WHEN YOU’VE HAD A WORK INJURY.  AS I’VE DISCUSSED IN OTHER BLOGS, SOMETIMES YOU NEED TO HIRE AN ATTORNEY AND SOMETIMES YOU DON’T – BUT IT’S ALWAYS A GOOD IDEA TO KNOW YOUR RIGHTS RIGHT FROM THE BEGINNING.  WHEN WE ACCEPT REPRESENTATION IN A CLAIM, IT’S BECAUSE WE THINK WE CAN MAKE THE CASE BETTER THAN IT WOULD BE IF THE INJURED WORKER PROCEEDED WITHOUT REPRESENTATION.  

BUT SOME PEOPLE THINK THAT JUST BECAUSE THEY HAVE AN ATTORNEY, EVERYTHING WILL GO SMOOTH IN THEIR CLAIM.  UNFORTUNATELY, THAT IS NOT ALWAYS THE CASE.  REMEMBER THAT WE ARE DEALING WITH AN INSURANCE COMPANY WHOSE MAIN GOAL IS TO MAKE A PROFIT – WHICH THEY DO BY LIMITING THE AMOUNTS PAID TO YOU IN COMPENSATION AND MEDICAL BENEFITS.  WE ARE ALSO DEALING WITH A GOVERNMENT AGENCY, THE INDUSTRIAL COMMISSION OF ARIZONA, THAT DOES NOT ALWAYS ACT WITH THE URGENCY WE WISH THEY WOULD.  AS ATTORNEYS, WE ARE OFTEN LIMITED IN WHAT WE CAN DO TO FORCE THE INSURANCE CARRIER TO PAY THE BENEFITS THE WORKER IS ENTITLED TO WHEN WE WANT THEM.  WE DO EVERYTHING IN OUR POWER TO MAKE SURE OUR CLIENTS SUFFER THE LEAST AMOUNT OF PAIN AND ANXIETY POSSIBLE.  BUT SOMETIMES, THINGS ARE OUT OF OUR CONTROL.  REMEMBER THAT YOUR LAWYER IS ON YOUR SIDE AND HAS AN INTEREST IN KEEPING YOU HAPPY AND GETTING YOUR BENEFITS PAID.  

When Will My Worker’s Compensation Case End?

When Will My Worker’s Compensation Case End?  

This is a common question I get from my clients.  This can actually be a difficult question to answer.  Some worker’s compensation cases are quick.  For example, a person cuts part of their body while working, gets the necessary medical treatment and heals quickly with minimal scarring and no damage to the underlying nerves and tissues.  This person’s worker’s compensation case would “end” quickly, basically as soon as a doctor declared the person stationary with respect to the industrial injury.  

However, what about a person who has a knee injury involving a torn meniscus, the person gets the surgery for the torn meniscus and the case is closed.  A few years later the person returns to his doctor with new symptoms to the same area and the doctor says the person now needs a total knee replacement.  The person would then have the right to file a Petition to Reopen the claim and if it is denied by the insurance carrier, he or she can take the issue to an Administrative Law Judge at the Industrial Commission.  

The point at which  a worker’s compensation case ends really depends on the injured worker and their healing process, each case is different. In fact, the injured worker has a lifelong right to file a Petition to Reopen their industrial claim therefore technically the worker’s compensation case doesn’t end until death.

The Labor Market Expert

The Labor Market Expert

By Nicholas Wearne, Associate Attorney

In addition to you and your attorney, there will be a hearing monitor, the judge, and a labor market expert present at your hearing for social security disability benefits.  This blog post focuses on the labor market expert and his/her part in the hearing process.

In order to qualify for social security benefits you must show that you cannot do your past work, nor can you do any other “relevant work.”  What is relevant work?  Well that depends on your age, what kind of work you did in the past, among other things.  The labor market expert is a job specialist who gives an opinion about what a person can and cannot do as far as “relevant work”. 

What usually happens is the judge will ask a number of hypothetical questions, for example, “If I believe the claimant is limited to 10lbs lifting and cannot sit for more than one hour, is there any relevant work that he/she can do?” The vocational will then give an expert opinion about “relevant work”.  The judges normally do not decide whether a person will be approved during the hearing thus they will get ask a broad range of hypothetical questions. 

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. 

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

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.

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.

MEDICAL RELEASES

MEDICAL RELEASES

By Dennis R. Kurth, Associate Attorney

Certified Workers' Compensation Specialist

Medical releases can be problematic in Arizona workers’ compensation cases.  The Arizona statute says that the medical records of a physician treating an injured worker are not privileged communications that can be withheld from “interested parties” (insurance carriers) who need the information “…for a proper understanding of the case and a determination of the rights involved.”  Consequently, a claimant must sign a medical release when requested by the carrier.  (A.R.S. §23-908(D)). There is often tension, however, between the carrier’s right to get medical records and the claimant’s right to privacy and to assert their doctor/patient privilege.

There is also a category of medical records unrelated to a claimant’s industrial injury that are considered discoverable by the carriers and their lawyers.  Those would be records of treatment for a condition similar to the industrial injury in the past.  For example, if a claimant who sustains a low back injury at work had a prior low back surgery and pain management treatment, the carrier would certainly be entitled to those records “…for a proper understanding of the case.”

Problems arise, however, when a claimant, usually one unrepresented and entering into litigation at the Industrial Commission, is presented with a medical release from the carrier or its lawyers, requiring them to give the carrier and lawyer access to any and all medical records from any doctor who ever treated the claimant for anything.

These unlimited medical releases would give the carriers and their lawyers access to sensitive, personal records of mental health, sexual dysfunction or infectious disease treatment without regard to the nature of the claimant’s industrial injury.  There is always the potential that such sensitive, personal records might be used by the carrier’s attorney to embarrass the claimant at the hearing.

These open-ended medical releases usually arrive with a packet of discovery paperwork like interrogatories and a deposition notice as well as correspondence from the carrier’s lawyer threatening the claimant that the release cannot be changed or modified according to HIPPA but can only be signed and returned.  This, even though HIPPA doesn’t apply to workers’ compensation medical releases.

Clearly, carriers are not entitled to such a broad unlimited, medical release under the law.  The workers’ compensation statute also states that medical records pertaining to conditions unrelated to the industrial injury “shall remain privileged.”  (A.R.S. §23-908(A)).  A claimant who objects to signing an unlimited medical release would be on solid legal ground in doing so.

Injured While Traveling For Work Outside of Arizona

Injured While Traveling For Work Outside of Arizona

By Diana Robles, Associate Attorney

          You may bring a workers compensation claim in Arizona in any of these three situations:  1) you reside in Arizona; 2) if the company you work for is headquartered in Arizona; or, 3) if you are injured at work while you are traveling outside of Arizona.  

If you are injured out of state, you have a right to bring that claim in the state where you were injured, or wherever the company you work for is headquartered.  Individual states have varying laws that outline the workers rights in that state.  Once a claim is filed in a particular state, that state’s laws would govern the case.  

So it would be impermissible to request that a matter which had previously been filed in a different state to be transferred to Arizona.  If the employer has filed the matter in a different state, you are subject to the laws and rules of their workers compensation system and if you need help you must contact an attorney licensed to practice law in that state to help you with that matter.  

If you were injured while you were traveling outside of Arizona contact an attorney right away to determine what would be the best way to handle your claim.

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).

Video Surveillance

Video Surveillance

By Diana Robles, Associate Attorney

Be aware, you might have someone following you ... It is very common in workers compensation cases for an insurance carrier to hire a private investigator to follow and video tape claimants.  This is legal, and further Arizona law permits the carrier to submit into evidence videos obtained of an individual if there is an issue being litigated.  

Of course, this is done to try and catch the individual doing things which they claim that they can not do, as a result of their injury. These videos are often passed along to independent medical examiners hired by the insurance carriers to show how this person behaves when they believe they are not being watched.  

In most instances, the video shows my clients hobbling around, or not doing much of anything.  Unfortunately, although the videographer may follow an individual around for many hours, sometimes over the course of several days, conveniently what is shown in the video is the few minutes where this person did something that seems more difficult to accomplish given their injury and limitations.  While unsettling to know that someone might be watching you, know that these videos are only part of the evidence a judge will hear in your case and are usually harmless.

SOCIAL MEDIA CAUTIONS

SOCIAL MEDIA CAUTIONS

By Dennis R. Kurth, Associate Attorney

Certified Workers' Compensation Specialist

Litigating workers’ compensation cases before the Industrial Commission can often be a highly partisan affair.  Because of the high financial stakes in a serious injury claim, carriers will underwrite expensive investigations and surveillance of workers’ compensation claimants.  The goal is to find contradictions in a claimant’s testimony about the details of the accident, their medical history and their post-injury physical capabilities.  Defense attorneys have successfully used such information to argue that a claimant’s injuries have been exaggerated and that the claimant is dishonest.  Such evidence, in the face of sworn testimony to the contrary, can be fatal to the claimant’s case.

Over the years, carriers’ efforts to “dig up the dirt” on claimants have evolved from simple medical and courthouse record searches and private investigation surveillance to the infiltration of social media accounts on Facebook, Twitter, YouTube and e-mail.  In a recent case that comes to mind, a client who was claiming back injuries and severe depression stemming from a work injury, had to explain photos and statements on his Facebook page that seemed to show him having a good time boating on Lake Pleasant and at a family birthday party.

Consequently, worker’s compensation claimants should be warned to implement certain safeguards in regards to the use of such accounts after an injury has occurred and a claim has been filed especially if the claim has been denied and is in litigation.

First, claimants should not put anything about their injuries in writing, except to the extent necessary to fill out forms for their doctors, without their attorney’s advice and permission.

Second, claimants should not send e-mails regarding their case to anyone except their attorneys and make sure that no other parties are copied on those e-mails.  Claimants should always be aware of what they say or post, especially photographs, on the internet.

Third, if claimants have public accounts with services such as Facebook, Twitter, Myspace, YouTube, etc., those accounts should be made private until the litigation is over and the claim is resolved.

Fourth, no on should be allowed to become a “friend” on an account unless the claimant is absolutely sure that they know that person.

No doubt it can be difficult for an internet-savvy claimant with broad online exposure to observe these guidelines, but it is a discipline that must be self-imposed to preserve personal privacy against carriers’ inquisitiveness and to enhance their chance to win their case.

Witnesses

Witnesses

By X. Alex Carpio, Partner

In most cases there is no need to have lay witnesses unless it involves the issue of compensability. Whether an in jury occurred at work? Are you and employee or independent contractor? Did you report the injury to your supervisor? Did you seek medical attention right away? 

The questions posed always involve co-workers who may have witnessed the injury or know about the injury. The case becomes a he said she said type of case and the judge must determine the credibility of the injured worker versus the other witnesses who will testify. In my experience the co-workers either do not want to cooperate as they fear they may lose their job or fear for other repercussions by the employer. 

Early in my career I would bring in all witnesses and almost always the co-workers that were to support my client's story almost always stated they were not aware of the injury or did not support my client at all. My best witness is my client, the injured worker. Unless I have an affidavit or something signed by a witness stating the facts of the work injury I prefer not to have many lay witnesses as in my experience most of the time the co-workers have been tainted by the employer and now I have 2-5 people testifying against my client.

Unless we have witness statements or relatives that are aware of the work injury it is difficult to predict what the co-worker may or may not say at the hearing despite each witness being under oath to tell the truth and nothing but the truth. 

Motor Vehicle Accident While You Are At Work

Motor Vehicle Accident While You Are At Work

By Diana Robles, Associate Attorney

          What happens if your job requires that you drive somewhere, and you are involved in a motor vehicle accident?  If you are injured, at any time while you are at work you are entitled to workers compensation benefits.  So if your job requires that you drive, and you are involved in an accident then you can usually file a workers compensation claim.  There are of course some exceptions in being able to file a claim, for example the employer or insurance carrier may deny benefits if the employee has so deviated from his expected route that he should not truly be considered to still be working.  Throughout the years, cases have been decided which can give some guidance as to when there is a valid workers compensation claim and when there isn’t, if an employee has deviated from his “work route”.

A workers compensation claim can be brought even if you are the one who caused the accident.  If however, you are not at fault you may be entitled to have both a workers compensation claim open, and a civil personal injury claim against the person who negligently caused the motor vehicle accident.  

Arizona law provides that if you recover anything from that the third party liability claim, the workers compensation carrier may have a right of subrogation against that recovery in that civil matter.  In fact, as the injured person you need to get permission from the workers compensation carrier to come to a settlement with this negligent party.  You also need to be aware that if you are planning on filing a claim against the person who caused that accident, the claim needs to be resolved within the first year.  

Ordinarily, Arizona law given an individual two years from the date of injury to file a claim for negligence against an individual.  In instances, when a person is injured while they are working, they have only one year to settle or file a lawsuit against the negligent party.  The second year, that cause of action is given to the insurance carrier so that if a worker has elected not to pursue a claim, they can sue on that person’s behalf.  If that first year after your date of injury is nearing, to protect your rights you must file a lawsuit against the negligent party.  Otherwise, you will have lost that right.  

That being said, most carriers don’t want to have to pursue this claim, so if your year is starting to run one option is to ask the carrier for a reassignment of that claim.  This can make matters very complicated and if you are in this situation you should contact a workers compensation attorney and a personal injury attorney right away, so that your rights are protected in both matters.

EXTREME LIMITS OF WC COVERAGE

EXTREME LIMITS OF WC COVERAGE

By Dennis R. Kurth, Associate Attorney

Certified Workers' Compensation Specialist

There are many misconceptions about workers’ compensation insurance, what it is and what it covers.  Most people have no contact with their state’s workers’ compensation system until they or a family member have a serious injury on the job and their family is affected directly.  Sometimes what one finds out about workers’ compensation is surprising.

In a case that illustrates perhaps the extreme limits of what kind of accidental injury workers’ compensation insurance might cover and which arose in the context of ongoing national debate over second amendment rights, the Arizona Court of Appeals in Naglieri v. Industrial Commission (2014), suggested that an injury covered by the accidental discharge of a collector’s military machine gun by an auto mechanic who was cleaning and reassembling it on a slow afternoon with his employer’s implied consent, was covered by the workers’ compensation law even though the injurious activity had nothing whatsoever to do with the business of an auto repair shop.

The Court endorsed the imposition of workers’ compensation liability on the employer because the manager of the shop observed the claimant working on the weapon, conversed with him about it and did not stop him from doing it.  Shortly after the manager walked away, the firing rod came unhinged and shot through the claimant’s eye nucleating it and penetrating his brain.

The injury occurred in a shop where the prevailing culture was decidedly macho and pro-gun.  A worker might bring in a new gun and show it off like a woman might show off a new baby.  The district manager of the employer, perhaps carrying his constitutional interpretation too far, testified that every employee had a constitutional right to bring a gun into the workplace and admitted to carrying a concealed weapon himself.

This unusual case illustrates the principle that if an employer knows about a dangerous activity that a worker is engaged in at work and does not stop it, the employer is responsible for any injury that occurs to the worker from that activity.

Obviously, despite the current national debate over second amendment rights, enlightened employers are best advised to consider the ramifications of importing such unrestrained rights into the workplace with the huge risks that entails.  A strong written, posted and enforced policy against such activity in the workplace would shield employers from such liability in the future.

Initial Treatment

Initial Treatment

By X. Alex Carpio, Partner

As a workers' compensation attorney I always look at the initial medical records. The initial records are probably the most important piece of information in any workers' compensation case for two reasons. 

1) The mechanism of injury - the initial record will let us know how the injury occurred and if it was at work. It's important to report how you got hurt and that you were hurt at work. 

2) Body parts injured - make sure you complain to the doctor about all the body parts you injured at work. This is important because the insurance company will focus on what you complained about initially. This is also important because insurance companies will deny in future treatment to any body parts you didn't complain about initially. 

It is important to let your doctor know what hurts at your first visit. Some medical providers will only focus on one body part and not list other problem areas. It's imperative that you review the medical reports and ask your doctor to make any changes that are inaccurate. I have had many cases where the initial medical report fails to list how someone was hurt, what body parts were injured and fails to state it was a work injury. Make sure you get a copy of the initial medical record and request any corrections as it is your legal right.