TIPS ARE INCLUDABLE IN THE AVERAGE MONTHLY WAGE

TIPS ARE INCLUDABLE IN THE 

AVERAGE MONTHLY WAGE

By Attorney Dennis Kurth

Snow, Carpio & Weekley

Today it might be hard to believe that tips should not be included in the average monthly wages of injured waiters, waitresses and bartenders but that was not always the case.  In fact, for the first sixty-five (65) years of the Arizona workers’ compensation statute and jurisprudence, tips were not included in setting the average monthly wage of injured service-workers.

The statue, A.R.S. §23-1041(D) then, referred to the “monthly wage” as the average wage paid…” in the month before the injury.  That language had been considered clear and unambiguous in referring only to the wages, hourly or otherwise, actually paid by the employer to the worker. Tips had been considered excludable because they are gratuities paid by customers directly to the workers.

Seeking to reconcile conflicting opinions from the Arizona Court of Appeals and to set the law straight, the Arizona Supreme Court, in Senor T’s Restaurant (1982)  addressed the issue head on.
The claimant, a waitress/bartender, was paid $425.80 a month in hourly wages and claimed, without any documentation whatsoever, that she averaged $100 a week in tips.  Apparently, the restaurant had a tip reporting policy of which she claimed to be unaware.

The Industrial Commission’s ALJ accepted the claimant’s testimony and added $400 in tips to her average monthly wage.  The restaurant appealed arguing that the statute was clear and tips were not included in the average monthly wage. The carrier also claimed it would be unfair for them to pay benefits on wages not subject to premium charges.

In workers’ compensation jurisprudence nationally, the mood was decisively in favor of including tips in the average monthly wage.  The overwhelming majority of jurisdictions had so decided and Arthur Larson, the respected national authority, was also in favor.

The Supreme Court, in Senor T’s, was more than accommodating.  Seizing upon the claim that the statue was ambiguous, the Court embarked on a quest of statutory interpretation. Ambiguous statutes, said the Court, must be construed in view of the purposes they are intended to accomplish and the evils they were designed to remedy.

The purpose of the law, of course, was to realistically compensate injured workers fairly so that they would not become charges on the public welfare.  To do so, compensation should be paid based upon the workers’ actual earnings. Everyone knew and expected that restaurant employers often paid service workers less than the minimum wage because they assumed that the workers would also receive tips from customers.  The purposes of the law would be undermined by excluding tips from the average monthly wage calculation. Further justifying their opinion, the Supreme Court raised the specter of a constitutional impediment (equal protection) to excluding tips.

Finally, the Court had to parry the restaurant’s argument that only tips which were reported to the employer (and the IRS) should be included.  Acknowledging that it might seem inequitable, the Court still purposefully declined to impose such a tip-reporting requirement and the Commission’s addition of $400 in tips to the claimant’s average monthly wage based on her testimony alone, stood.

The better practice for service employees, of course, is for them to keep an actual record of actual tips earned and indeed, some do, even if only on a calendar for example.  That makes the proof a lot easier.  So does the courageous support of a comparably-experienced co-worker. The statute itself, although re-lettered (A.R.S. §23-1041(G)) has never been changed but the law on tips in the average monthly wage has long since been considered finally settled.

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.

Medical Source Statements

Medical Source Statements

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

As important as it is to have a good lawyer, it is equally as important to your social security case to have a supportive doctor.  To qualify for social security benefits you must prove that you are unable to work or, in some cases, that you can only do light work.  While there is an occasional outlier, the only way I have seen people successfully prove this, is with supporting medical opinion. 

One of the first things I do when a person comes in is give them a Medical Source Statement form.  It is a form that asks your doctors what your restrictions are.  It specifically asks about sitting and standing limitations, lifting limitations, percentage of time you will be off task, number of days you will be absent from work in a given month, etc.  These forms are the primary evidence I use at hearing in order show that someone is disabled.  Your word alone, albeit convincing, is usually not sufficient to convince the judge that you should receive benefits. 

Whether you represent yourself or have an attorney represent you I recommend having your doctor fill out one of these forms.  The more specialized your doctor is, the more convincing the restrictions will be.  If they are not willing to fill out the form, try finding a doctor who will, or see if they are willing to write a letter that states your restrictions in their own words.  Some doctors do not like being limited to a form.  Versions of this form may be found online.  

If you believe you would qualify for social security disability and need a medical source statement form, feel free to contact our office for a free consultation.

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

THE EXCLUSIVE REMEDY AND THE YARNELL HILL FIRE

THE EXCLUSIVE REMEDY AND 

THE YARNELL HILL FIRE

By Attorney Dennis Kurth

Snow, Carpio & Weekley

The Yarnell Hill Fire was a tragic event that resulted in the deaths of nineteen “hotshot” firefighters on June 30, 2013.  Speculation grew about who, if anyone, was responsible for the hotshots having left a position of relative safety above the fire to move to one of extreme peril in the path of the fire.
The hotshots were direct employees of the Prescott Fire Department (City of Prescott) and their survivors were entitled to workers’ compensation benefits from the City.  They worked in the surrounding wilderness area, however, under an intergovernmental agreement (“IGA”) with the State of Arizona Forestry Division.

Several families of the hotshot victims sued the State of Arizona and State Forestry Division as third-parties whose negligence caused their deaths.  Their theory was that a couple of supervisors directed by the Forestry Division had left their posts and neglected their duty to protect the hotshots.

The State of Arizona and the State Forestry Division argued that the Plaintiffs’ lawsuits were barred by the “exclusive remedy” provision of the Arizona workers’ compensation law.  That section of the statute, A.R.S. §23-1022(A), one of the philosophical pillars of the workers’ compensation law, gives employers who procure workers’ compensation insurance immunity from a civil lawsuit by an injured worker or a worker’s family in the event of the workers’ death.  Workers’ compensation is said to be the “exclusive remedy” against the employer.

The Court of Appeals, in upholding the Superior Court’s dismissal of the Plaintiffs’ lawsuits in McKee v. State, et. al., (Ct. App. 12/30/16), held that the hotshots, because of the IGA, were employees of both the City of Prescott and the State Forestry Division and therefore were barred from suing the State of Arizona and the State Forestry Division by the exclusive remedy statute.
Plaintiffs also argued the sole statutory exception to the exclusive remedy rule, that the State’s actions rose to the level of “willful misconduct” (A.R.S. §23-1022 (A)(B)) as a basis for circumventing the exclusive remedy statute.  Reviewing the statute and case law the Court concluded that the willful misconduct exception required that the Plaintiffs prove that the State had acted with the deliberate intention of harming the hotshots and the Plaintiffs had not even alleged that.  Even gross negligence, according to case law, does not rise to the level of willful intent.  Consequently, Plaintiffs had no cause of action under the exclusive remedy “willful misconduct” exception either.

The McKee case illustrates the continuing strength of the exclusive remedy statute.  Even in the face of a horrific event where the workers’ compensation remedy only provided burial expenses to the mother of the unmarried and childless hotshot in McKee, the law cannot be circumvented easily.  All but three of the Plaintiffs’ cases settled for very modest amounts (about $50,000) before the remaining three went to the Court of Appeals.

Indeed in Arizona jurisprudence, there has been only one case involving the successful application of the willful misconduct exception and that was a case in which the employer shot the employee to death in his office.  (See Bonner v. Minico (1988).  Even in Bonner the result was uncertain because the employer, in the criminal case, argued that temporary insanity deprived him of the ability to form the legal intent to murder.  In Bonner, the Arizona Supreme Court held that the employer wanted to eliminate the decedent and knew that pointing the gun at her and pulling the trigger might kill her and that was sufficient to hold the employer liable in a civil wrongful death action.

Perhaps long in the future more information will appear as to the cause of the hotshots’ death.  As of now, however, only one hotshot survived and he has not yet spoken on the record as to whose mistake might have led to the disaster.


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.

Social Security Disability and Marijuana

Social Security Disability and Marijuana

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

A question some of my clients have asked me is how smoking marijuana could potentially affect their application for social security disability benefits.  I wish I had a hard and fast answer but unfortunately the law is unclear.  When deciding whether you should qualify for benefits an administrative law judge must take into consideration whether the use of drugs and/or alcohol is a contributing factor to why you are disabled.  They must determine whether your condition would continue to exist if you were not consuming drugs or alcohol.  If drugs and alcohol are a contributing factor could lead to a denial.

I recommend that all my clients remain off any drugs that are not prescribed by a doctor including alcohol, nicotine, and marijuana.  Better to be safe than sorry as far as recreational drug use is concerned.  However, if marijuana has been medically prescribed, the law becomes less clear.  In many states medical marijuana use has been legalized even though all use of marijuana is illegal under federal law.  I have seen it used for treating progressive diseases as well as terminal ones like an advanced cancer.

A social security applicant who is considering using medical marijuana should take several things into consideration although my advice is ultimately proceed if you are comfortable with the risk. First, consider the fact that under federal law marijuana is illegal and social security disability is a federal program.  Second, remember that every social security judge is different.  They each have their own opinions and biases.  If the judge does not believe that the medical use of marijuana should be legal it may affect the judge’s decision.  Some judges are fine with it, some aren’t.  Finally, if you are going to use medical marijuana consider ways that you can show its use is for legitimate medical purposes.  For example, make sure you have a medical marijuana card, that you get it from a dispensary, and that its consumption is being prescribed by a doctor. Some doctors are even willing to write letters explaining why the use of marijuana is appropriate.  Make sure that all your doctors know about it.  Many pain management doctors for example will not allow you to be on both narcotics and marijuana.  If you are on both marijuana and narcotics and your doctor gets you in trouble for it, it could really hurt your credibility and ultimately whether you are approved for benefits.   In, sum proceed carefully and at your own risk.

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.

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.

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

By Attorney Dennis Kurth

Snow, Carpio & Weekley

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

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

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

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

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

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

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

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

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

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

---

[1] Safeway Stores v. Industrial Commission, 152 Ariz. 42, 730 P.2d 219 (1986).

[2] Tabler v. Industrial Commission, 202 Ariz. 578 (App. 2002).

[3] True Value Company v. Industrial Commission, (Ct. App. 10/4/16).

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

By Attorney Dennis Kurth

Snow, Carpio & Weekley

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

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

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

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

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

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

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

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Social Security Disability and Early Onset of Alzheimer's Disease

Social Security Disability and Early Onset of Alzheimer's Disease

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

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

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

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

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Full and Final Settlements

Full and Final Settlements

By Partner/Attorney Brian Weekley

Snow, Carpio & Weekley

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

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

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

From 11-1-17 forward, the parties will be able to resolve both the medical and indemnity portions of their claims " once and for all." 

However, these full and final settlements will have serious ramifications for the uninformed injured worker. Valuation of indemnity and future medical is critical, as will be the all important role that Medicare plays in resolved claims.

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

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Facet Mediated Pain & the ODG....

Facet Mediated Pain & the ODG in AZ Workers' Compensation

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley

           

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

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

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

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

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.

Average Monthly Wage - Get it Right!

Average Monthly Wage – Get it Right!

By Attorney Erica Gonzalez-Melendez

Snow Carpio & Weekley

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

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

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


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

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

What to expect at a Social Security Disability Hearing

What to expect at a Social Security Disability Hearing

By Nicholas Wearne, Associate Attorney

Social Security Disability hearings can be intimidating so this is a general idea of what to expect. 

First off, I tell people to arrive about an hour early.  You never know what traffic is going to be like.  Make sure you have researched the address the night before and you know where the hearing office is located.  I always meet with my clients in the half hour before hearing just to review their case and go over things one last time.

When you arrive you will check in with security and if you have an attorney you will wait for them.  About 5-10 minutes before the hearing begins a hearing monitor will come check on you to make sure you are there and to make sure everything is ready for the judge.  They generally leave and will come back once the judge is ready. 

Expect your hearing to last about an hour.  In the hearing room it will you, your attorney if you have one, the judge, the hearing monitor, and usually there will be a vocational expert.  The judge and your attorney will ask you a series of questions to get an idea of why you think you are disabled, to get an idea of what you do during the day, and to figure out what your past work was like.  The judge will them ask some hypothetical questions to the vocational expert.  Generally, you will not receive a decision from the judge at that time but he will conclude the hearing and send you his decision a month or so later in the mail.  On occasion the judge will end the hearing by letting you know what he or she is going to do.

If you have a hearing scheduled and you are nervous about how things are going to play out, contact our office for a free consultation.