VOLUNTEERS

VOLUNTEERS

By Attorney Dennis Kurth

Snow, Carpio & Weekley

Volunteers are generally not “employees” and, therefore, are not covered by the workers’ compensation law if they are injured on the job.  There are, however, statutory exceptions to the rule for volunteer fireman and policemen, DPS reserves, sheriff’s posse members, voc rehab clients of DES, national or State guard or militia members, Game and Fish reserve members and emergency search and rescue workers.

Although the Arizona workers’ compensation statute seems to be clear as to who is a volunteer and who is not, every great once in a while a dispute arises when a putative volunteer gets hurt on the job and files a claim for benefits.  Litigation over those disputes sometimes results in an appellate opinion that provides some definitive guidance for workers’ compensation practitioners.

The most recent such appellate opinion involved a teacher who was sent by a local foundation to teach English in Africa (Cote d’Ivoire) where she was seriously injured in a bus accident while on a work-related journey.

The foundation for which the claimant worked was a 501c3 non-profit organization focused on adult literacy in African countries.  The claimant had worked for the foundation on a prior assignment in Africa without incident.  After several years at a regular job in the States, she was called by the foundation again and took the assignment on which she was injured.

In a local one-week orientation program prior to departure, the claimant was told that she was being engaged strictly as a volunteer and signed a Participation Agreement to the same effect.  In it, she acknowledged that she would receive a nominal living stipend, not a salary, and some funds to cover visas, inoculations and other travel expenses.  Once settled in Africa, she received a monthly stipend ($850) to cover her living expenses, transportation and incidental expenses. The stipend was not reportable to the IRS as taxable income.

The claimant’s workers’ compensation claim was, of course, denied, and, by the time she got before the ALJ, she claimed, unconvincingly, that she did not understand the nature of her status as a volunteer and believed that she was an employee.  Because of her education, prior participation in the program, many years of teaching experience and, of course, the documents she had signed, the ALJ did not find her credible or her claim compensable.  She appealed.

Not surprisingly, the Arizona Court of Appeals upheld the ALJ’s decision in a published opinion that provides guidance for evaluating similar but, hopefully, more meritorious claims in the future.
In order to be an “employee” eligible for coverage under the workers’ compensation law, the Court said, there must be a contract of hire, express or implied, between the parties in which the worker agrees to work for the employer for some type of payment.  The payment does not need to be in the nature of a traditional salary but must be something of value.

The key requirement is that the putative employee expects to receive and does receive something of value as payment for his/her services.  The totality of the facts regarding the relationship between the employer and the claimant, including their intentions and expectations, must be examined according to the Court.  A volunteer does not expect to be paid a salary or wages.

The final important factor for the Court of Appeals in affirming the ALJ’s award was that the statue created several specific exceptions to the non-coverage rule for volunteers and the claimant did not fit any one of them.  Consequently there was no legislative intention to cover her situation.

While this claimant’s efforts to obtain workers compensation coverage for an injury were doomed from the inception, the Court of Appeal’s opinion provides valuable guidance for more deserving cases that are certain to appear before the Industrial Commission in the future.  One such case involves bartenders at an American Legion Post who, the Post claims, are volunteers because they are not paid any hourly wage or salary but are allowed to keep all tips which were considerable.  It remains to be seen how the Industrial Commission will apply the Court’s opinion to such facts.


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.

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND

By Attorney Dennis Kurth

Snow, Carpio & Weekley

In the last few years, in reaction to some very high profile incidents around the country, there has been recognition of the tremendous stress police officers are under as a regular part of their daily duties.  The law enforcement business is fertile loam for workers’ compensation claims especially claims for physical injuries.  Any long-term police officer without a record of several industrial injuries and surgeries is an outlier.

At the same time as there is greater appreciation for the physical and mental stresses of police work there is also, ironically, a clear trend in workers’ compensation law, at least in Arizona, to deprive police officers of coverage for mental injuries, like PTSD, caused by extreme job stress. Mental injury claims by police officers, particularly PTSD, are becoming more prevalent as well as problematic.  There is a lot more official (municipalities) resistance to these claims in Arizona.

Because what any civilian would consider extraordinary stress seems simply to be a daily feature of the life of a police officer, it has become very difficult to win a PTSD claim for a police officer before the Industrial Commission of Arizona.

The Arizona workers’ compensation law was changed significantly in 1980 to increase the burden of proof for all mental stress claims.  The law went from requiring proof of any work contribution to a double hurdle of proof of unusual, unexpected or extraordinary stress that is a “substantial contributing cause” of the mental condition. (A.R.S. §23-1043.01(B)).  The legislature specifically wanted to discourage such claims, at least in the general working population, by making it more difficult to win them.  There was no distinction in the statute for police officers.

Case law since then has held that the test of what is unusual, unexpected or extraordinary stress is an objective one which compares the claimant’s stress to that of fellow officers rather than to the general public.  As one might expect, if all police officers are subject to tremendous stress on a daily basis, it will be near impossible to successfully file a mental stress claim.

A recent Arizona case, now in the Court of Appeals, illustrates this dilemma.  The officer held several different assignments over a twenty year career with the City of Phoenix.  He filed a workers’ compensation claim for PTSD which he attributed to a fifteen-item list of extremely traumatic events including suicides, homicides, child drownings, domestic violence and horrific auto accidents over most of those years.  The final event triggered a flashback that reduced him to sitting in his patrol car and crying.  Finally he sought treatment and was diagnosed with PTSD.

Although the officer had some personal issues related to a contentious divorce and a minor disciplinary matter, both his and the city’s psychiatrists testified that he suffered from PTSD and that the cumulative job stresses on the officer’s list were a substantial contributing cause of his condition.
Both the claimant and the City were represented by experienced workers’ compensation specialists who duked it out, toe to toe, before a very experienced, well-respected ALJ at the Industrial Commission. The officer was specifically found credible by the ALJ but lost the case because, according to the ALJ, he did not prove that his stress was unusual, unexpected or extraordinary compared to other police officers.

What turned the case for the City was the testimony of two high-level, long-tenured officers who said that all police officers are first responders who are exposed to extreme stresses daily in their jobs.  They considered the claimant/officer’s stress to be typical for first responders rather than extraordinary or unusual.  Each also claimed to have personally experienced several shooting deaths, dying declarations and one had been shot himself.  The City attorney also filed documentary evidence consisting of statistics on police staffing levels, listings of drowning calls, summaries of officers who died in the line of duty and other events tending to support its position that extraordinary stress is simply a part of police work.

The ALJ’s award will now face scrutiny by the Court of Appeals but it is not real likely, in this writer’s opinion, that the Court will overturn the ALJ’s award as the objective test of unusual and extraordinary stress has been upheld in other employment contexts as well.  It is more likely to draw the Court’s admonishment that the statute be changed to accommodate these serious and meritorious claims.

In the meantime, it is hard to accept that under a remedial statute intended to protect injured workers, those doing the most dangerous of all jobs cannot receive workers’ compensation benefits because they all face extreme danger daily.  Perhaps eventually this case might spark the legislature to change the burden of proof for police officers in mental stress cases.  Certainly this ominous ruling should not represent how we want our workers’ compensation law to treat our police officers.


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.

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.