Friday, April 28, 2017

WORKERS’ COMPENSATION PAYMENTS

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

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

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

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

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

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


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

Friday, April 21, 2017

What are my chances of getting approved if I am under 50 years old?

What are my chances of getting approved 
if I am under 50 years old?
By Nicholas Wearne, Associate Attorney

As you age the level of disability that you must prove relaxes.  In other words as you get older getting Social Security Benefits gets easier.  The catch is this relaxation of the rules does not start till you are 50 years old.  

While there are certain exceptions, if you are under 50 years of age you generally must prove that you are not even able to do sedentary (sit down) work.  You have to prove that there are no jobs in the national economy that you could do.   We generally prove this by sending a form for your doctor to fill out.  If you cannot sit more than 4 hours a day, it suggests you cannot do a sit down job.  If you are going to have to miss work more than 4 days a month due to health problems, it suggests you cannot do a sit down job.  If you are going to be off task more than 25% of the time due to pain/symptoms, then it suggests that you cannot do a sit down job.

Proving you cannot do a sit down job is difficult.  You have to have a doctor who supports you and a judge who believes both you and the doctor.  While it may be difficult for people 50- to apply, I would always recommend applying for social security disability if you have the requisite support of your doctor. If you don’t have the requisite support I would still apply but then focus on getting that support from your doctor. 


Friday, April 14, 2017

HERNIAS IN ARIZONA WORKERS’ COMPENSATION

HERNIAS IN ARIZONA WORKERS’ COMPENSATION
By Dennis R. Kurth, Associate Attorney
Workers' Compensation Specialist

Hernias, a very common type of industrial injury, are treated differently from all other injuries in the Arizona workers’ compensation law.  They are divided into two categories under the statute depending on whether they are purely traumatically-caused or whether a pre-existing abdominal wall weakness contributes to the hernia.  (A.R.S. §23-1043(1) and (2)). 

“Real traumatic” hernias or “class one” hernias, are those caused by a direct injury to the abdominal wall, whether by a strain from lifting, external force or otherwise, which allows the viscera to protrude and where there is no proof of a pre-existing weakness such as a prior hernia or congenital defect.

These hernias are treated like almost all other injuries and the claimant’s burden of proof is to establish only that the work activity contributed to the development of the hernia.  Temporary compensation benefits for real traumatic hernias are the same as for all other injuries with no monthly limit on indemnity benefits.

“Class two” hernias encompass all other hernias and are the result of a combination of a work-related strain and a pre-existing abdominal weakness.  Apparently, the drafters of this legislation felt that such hernias would be much more ubiquitous than real traumatic ones and because not solely the responsibility of industry, deserving of only limited compensation.

The drafters also added some additional requirements, beyond the normal burden of proof, to these type of hernias: (1) the immediate cause must be a “sudden effort or severe strain or blow”; (2) that the descent of the hernia immediately followed the cause; (3) that the cause was accompanied by severe pain; and, (4) that the pain was so severe that the claimant reported it immediately to one or more persons.  (A.R.S. §23-1043(2)(A-D)).

Fortunately for claimants, because the workers’ compensation law must be liberally construed, it is not necessary to establish every requirement to the letter and case law under the statute has softened the requirements considerably.  Immediate descent means anything from several minutes to several days.  Severe pain, a very subjective standard, can mean some pain or even no pain.  Immediate communication to one or more people means within a reasonable time.  All of these matters of proof are questions of fact for the ALJ.  The distinction between the two classes of hernia is a medical question to be addressed by the doctors.

If all of the statutory criteria for class two hernias are met and medical testimony establishes a causal relationship to the work activity or strain, compensation is payable for only two months, which is usually sufficient to cover the normal recovery time after surgery. The two month compensation limit, however, does not apply if the treatment/surgery leads to complications which delay recovery and/or necessitates further medical treatment.  An example of such complication could be an infected mesh which requires further surgery.


Workers’ compensation carriers tend to treat all hernias as class two hernias without regard to the details.  Usually a claimant will have to successfully litigate the issue to have a compensable class one hernia.  Such injured claimant should consult a worker compensation specialist to see if their injury can be classed as a real traumatic hernia rather than a class two hernia.

Friday, April 7, 2017

The Treating Physician Rule

The Treating Physician Rule
By Nicholas Wearne, Associate Attorney

Code of Federal Regulations Section 404.1527(2)(c)(1) states that the Social Security Administration will give more weight to a source that has examined and treated you than one that has not examined and treated you.

When you apply for Social Security Disability your file will be reviewed by many different people including doctors.  The doctors who review your file will likely take a stance or make a determination regarding what your work restrictions should and should not be.  While your initial application can be denied for many different reasons, a reason that I see often is that the reviewing doctors felt my clients could return back to a level of work where there are not disabled.

How is this possible when the law states that your treating doctor is supposed to be given more weight than a doctor that has not examined you?  It usually happens because peoples treating doctors have not given an opinion on what they are and are not able to do as far as work.  If your treating doctor has not given you specific work restrictions then there is no opinion to refute the one given by the reviewing doctors with social security disability. 


When I sign social security applicants up for representation one of the first things I do is get an opinion on file from the treating doctor regarding what they are and are not able to do as far as work.  They may still get denied at the initial levels but will have a solid legal argument that they are disabled.  I refer to Section 404.1527 in almost every hearing I do.  If you believe yourself to be disabled and would like help in getting an opinion regarding work restrictions from your treating doctor, contact Snow Carpio and Weekley for a free consultation.

Friday, March 31, 2017

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.

Friday, March 24, 2017

I am disabled and have no money, how does my attorney get paid?

I am disabled and have no money, 
how does my attorney get paid?
By Nicholas Wearne, Associate Attorney

If you are applying for disability it means that you are unable to work.  Savings are likely running out and most of my clients are living with friends and family.  The question often comes during initial consultations “How am I supposed to pay you?” 

There are lots of rules about how attorneys get paid for helping Social Security Disability applicants but the answer to how I get paid is simple.  If I am successful in helping a client qualify for Social Security Disability benefits, there will be money owed to them back to around the time they had to stop working.  I charge 25% of the back pay or $6,000 dollars from the back pay, whichever is less.  Once I have been paid from the back pay, I do not charge anything more.  Also, if a client does not win then I do not charge.


Just to illustrate, if a client gets $10,000 in back benefits I would charge 25% ($2500).  If a client gets $100,000 in back benefits I would charge $6,000 dollars.  If we do not win, I do not charge and consultations are always free whether we take the case or not.

Friday, March 17, 2017

VA Disability vs. Social Security Disability

VA Disability vs. Social Security Disability
By Nicholas Wearne, Associate Attorney


While I am not completely familiar with the process of applying and acquiring Veteran’s Disability Benefits, I have many clients who have applied for and obtained VA disability benefits.  

The law states that the judge is supposed to take the approval of Veteran’s Disability Benefits into consideration when making a determination regarding Social Security Disability Benefits.  

While the law merely says the judge has to take it into consideration, my experience is it tends to hold a lot of weight with them.  If are a disabled veteran and want to apply for Social Security Disability Benefits as well, contact Snow Carpio and Weekley for a free consultation.

Friday, March 10, 2017

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.


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).

Friday, February 24, 2017

Social Security Disability Hearings

Social Security Disability Hearings
By Nicholas Wearne, Associate Attorney


If you appeal a denial for social security benefits you will eventually end up at a hearing.  Clients often get very nervous for the hearing and ask me what they are going to be like.  When a hearing is scheduled in your case it will be at one of the social security hearing offices.  You are expected to arrive early and check in with security.  When the judge is ready for you a hearing monitor will come find you in the waiting room and take you back to the hearing room.

The first thing the judge will do is swear you in.  It is expected that you will tell the truth at all times during your hearing.  If you are unrepresented the judge will then ask you questions about your situation and why it is you feel you are disabled.  The judge may also ask questions about your past work, about your medical treatment, and about your current work restrictions.  If you have an attorney with you the judge will also allow your attorney to ask questions and to make an argument regarding why he/she believe you are disabled.

In some hearings a vocational expert is present.  A vocational expert is basically a job expert.  The judge will ask the vocational expert questions.  The questions are usually posed as a hypothetical.  A question might be posed as follows… If I (The Judge) were to adopt the work restrictions as outlined by John Doe’s doctor, would John be able to perform his past work or any other work in the national economy?  The judge may in fact ask a range of hypotheticals.  If you have an attorney present, the judge will then turn the time over to your attorney to ask the vocational expert some questions.   It is not common in any of the hearings I do but you can occasionally have witnesses such as family members and doctors testify as well.

All together the hearing normally lasts about one hour.  An audio recording is made of the hearing for later reference and both the judge and the hearing monitor who originally came to get you will take notes throughout the hearing process.  You do not normally get a decision at the end of the hearing but have to wait for several months for a written decision from the judge.  On occasion, the judge will let you know at the end of the hearing what he or she is going to do.

If you have a hearing scheduled, or have been denied and would like to appeal your case up to the hearing level, contact Snow Carpio and Weekley for a free consultation. 


Friday, February 17, 2017

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.



Friday, February 10, 2017

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.

Friday, February 3, 2017

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. 

Friday, January 27, 2017

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.



Friday, January 20, 2017

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.



Friday, January 13, 2017

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. 

Friday, January 6, 2017

Can I work while I am waiting to hear back on my disability application?

Can I work while I am waiting to hear back 
on my disability application?
By Nicholas Wearne, Associate Attorney
Snow, Carpio & Weekley


My advice is do not work if you have applied for social security disability.  Technically you can work for up to 3 months after you have applied for disability and if it does not work out it will be considered a failed work attempt.  Technically, in certain cases, and depending on your age, you can work making less than $1000.00 a month and still be considered disabled.

But again, my advice is do not work… at all.

Part of what you are claiming when you apply for disability is that you are so severely impaired that you are physically unable to work.  If you have applied for disability but you go on to keep working then the judge will confront you about why you feel you cannot work now but you could work for those three months.  They will ask you why you stopped working and why you could not work longer than the three month period.  If you are working making less than $1000.00 they will ask you why you cannot put in more hours.  They will also ask you what you are doing to make the $1000.00 dollars to make sure it is line with your work restrictions.  While under the law you can technically work in some cases, the judges come down very hard on people who are working and often times doubt your truthfulness about your symptoms.  When my clients ask if they can try working some to make ends meet I explain the potential consequences and leave it up to them as to whether or not it is worth it.  Generally speaking, my advice is do not work.

One last word of caution, the judges often have a broad definition of work.  If you are a mechanic for example, and you have been doing side jobs for friends to make ends meet, this is considered work.  If you have been selling things on the internet and making money off them, this is often considered work.  If you have questions about what you can and cannot do as far as working or would like a more detailed explanation of what is in this blog call Snow Carpio, and Weekley to set up a free consultation.

Thursday, December 1, 2016

Are My Workers Compensation Benefits Taxable?


Are My Workers Compensation Benefits Taxable?

One of the most common questions we get around this time of year is:  "Do I need to report my Arizona workers compensation benefits or settlement proceeds to the I.R.S.?"  or, "Are my Arizona Workers Compensation Benefits taxable?"

Almost always, the answer is NO!!!  Generally speaking, Workers' compensation benefits are currently not subject to federal income taxation.  However, if your workers' compensation benefit reduces your Social Security Disability benefit, the portion that reduces is considered Social Security for taxation purposes.  One of the justifications for workers compensation benefits being only 66 2/3% of your regular wage is that they are tax exempt. 

If an injured worker has specific questions about this matter, we recommend you contact the Internal Revenue Service or your tax advisor.

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

Wednesday, November 16, 2016


Snow, Carpio & Weekley, PLC will be launching our new website on July 1, 2014. 

In anticipation of the new website and marketing efforts, we have revamped our YouTube Channel and have added multiple new videos including videos of our employees!

So if you haven't taken a look lately, please do!

Wednesday, July 13, 2016

Workers Compensation and My Social Security Case


Workers Compensation and My Social Security Case
By Nicholas Wearne, Attorney
Social Security Disability Department
Snow, Carpio & Weekley


Many workers compensation clients who are unable to return to work after their injury apply for social security disability benefits.  One of the first questions or concerns they have is how being on workers compensation will affect their social security case and vice versa.  There are two questions there so lets take each in turn.

1. How will being on social security affect my workers compensation case

While your case is open and you are receiving medical care, social security will not have any affect on your workers compensation case.  While you are actively recovering you can receive both social security and workers compensation benefits.  However, being on social security may come into play when and if you decide to settle your case.  First of all, being on social security disability sends a message to the workers compensation insurance carrier that you do not intend to go back to work.  It suggests to the carrier that you intend to collect your workers compensation benefits for life.  If the insurance carrier believes you will collect your benefit for the rest of your life in may increase your settlement amount.  Secondly, being on social security disability benefits will affect the way your workers compensation settlement agreement is written should you decide to settle.  If the agreement is incorrectly written your social security benefits could be terminated.  At Snow Carpio and Weekley we build these protections into all of our workers compensation settlement agreements but some firms do not.  It is important to inform your attorney that you are collecting social security disability benefits so they can write the agreement correctly.

2. How will being on workers compensation affect my social security disability case

As far as applying and getting on benefits go, collecting workers compensation benefits will not hurt you.  However, if you are approved for social security disability benefits your monthly benefit amount received from social security is likely to be affected (i.e. reduced) based on what you are receiving from your workers compensation case.  Do not worry, when and if you stop receiving workers compensation benefits, you can and should contact the Social Security Administration Office so your monthly benefit amount can be increased.  The great thing about applying for social security disability while your workers compensation case is open is you have doctors who are willing to state specifically what you can and cannot do as far as work.

If you have either a workers compensation case or a social security disability case and have questions regarding how the two will affect each other feel free to contact Snow Carpio and Weekley for a free consultation statewide at 855-325-4781. You may also learn more about us by visiting our website at www.workinjuryaz.com.