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.  

Recent Bad Decision from Arizona Court of Appeals - Apples to Oranges

I recently litigated a claim at the Court of Appeals that had to do with Arizona's "Equal Measure Rule" as set forth in the Elias v. Industrial Comm'n case.  That case says that the same measure of hours used to calculate the injured worker's pre-injury average monthly wage should be used to calculate their post injury earning capacity.  In short, a worker who worked less than full time before their injury shouldn't be measured using full time hours after. 

In my case, when we litigated average monthly wage, the carrier argued vehemently that my client worked less than full-time, or 31 hours per week to be exact.  The judge agreed and set the wage based on 31 hours per week.  However, when we got to the LEC (loss of earning capacity) stage, the carrier argued that he was a full time employee, and that therefore his post injury earning capacity should be based on 40 hours per week.  The ICA judge applied (correctly, I believe) the "equal measure rule" and found that the post injury earning capacity should be based on the same number of hours as the average monthly wage.  The carrier appealed. 

At the Court of Appeals, I tried to point out to the justices that "full time" and "part time" work defy an exact description.  For example, is 38 hours a week "part time" work?  Is 29 hours "part time"?  At exactly what point does full time work become part time and vice versa?  My argument is that using the exact number of hours worked pre-injury as worked post injury is the most exact way of giving "equal measure".  The justices disagreed, however, and would have us continue clumsily trying to pigeonhole workers into either a 40 hour week or a 20 hour week, with no flexibility for any other circumstances. Bad decision made by otherwise very smart lawyers who know very little about workers compensation law. 

Chad T. Snow is a work injury lawyer with the firm Snow, Carpio, & Weekley.  With offices throughout Arizona, he can be reached through the firm's website at www.snowcarpio.com 

Recent Decision On Election of Remedies at Court of Appeals

A recent Court of Appeals decision on a workers compensation claim brings to mind an issue that I've never discussed here on the blog - the Election of Remedies Doctrine.  In this case, the worker was injured working for an employer who did not carry workers compensation insurance.  In such cases, the worker can elect his or her remedy between pursuing a tort (personal injury) claim against the Employer versus pursuing a Workers Compensation claim through the Industrial Commission's Special Fund No Insurance Section.  (In cases where the Employer IS insured, the only remedy is a work comp claim). 

In this case, the injured worker first filed a personal injury claim against the employer in Superior Court, but later decided to file the workers comp claim at the ICA.  The Special Fund No Insurance Section (NIS) accepted the claim and began paying benefits.  They later found out about the P.I. claim and tried to claim that the injured worker had elected his remedy.  However, the Court found that since their acceptance of the claim had gone final, their election of remedies defense was untimely and thus was waived. 

The important part to remember is that workers who are injured working for employers who fail to carry workers compensation insurance, the Employer's typical immunity against tort suits is waived and the employee can file a personal injury suit against the employer if their negligence caused the injury.  Many times, these cases are worth more because of additional damages such as pain and suffering that can be paid. 

Chad T. Snow is a workers compensation attorney with offices in Phoenix and Tucson.  He can be reached through his website at Snow, Carpio, and Weekley and is always available to answer questions on work comp cases.