How to Describe Your Work Injury

To help your medical providers to properly document the history of your work injury, you should provide them with a one sentence history they can write down, such as: “On February 2, 2010, I hurt my neck, left shoulder, and right knee when I fell down a flight of stairs at work.” Keep it as concise, consistent, accurate, and as simple as possible.

Being injured and in pain can be a stressful time in your life. Oftentimes during this confusing period after the accident, your pain complaints and treatment may be focused to one area of the body, but with other injured areas possibly mentioned and not treated. All injuries may not have been discussed or, at least, noted at the emergency room visit or subsequent doctor visits due to embarrassment, a stoic demeanor, a desire to protect the employer, or a focus on the primary injury.

If all injuries that you believe relate to your work injury were not listed on the initial medical notes, make an appointment with that doctor or another doctor to have him or her examine the other parts of your body. Also, you should tell your employer what you believe to be the initial injuries and what you believe to be part of the entire claim. Inability to have a paper trail documenting all of your injuries could impact what injuries are covered, both for wage loss and medical purposes, with catastrophic unforeseen results.

For more information regarding this topic or general questions regarding a Workers' Compensation Claim, you may reach Chad Snow and the firm of Snow and Carpio and Weekley, PLC at 602-532-0700 or 520-647-9000.

In the absence of Attorney Chad Snow, blog posted today by: April Lang-Snow, Business Manager @ Snow and Carpio, PLC.

Tiebreaker IME's in Arizona Workers Comp Cases

One issue that is frequently litigated in Arizona work injury claims is whether or not additional medical care is necessary or not and whether or not it is related to the industrial injury. Usually there is a treating doctor on the side of the applicant wanting to perform additional care and a defense medical expert on the side of the carrier saying either that no further care is needed, or that any additional treatment is not related to the work accident.

The problem with litigating these medical issues is that they can often take forever to litigate, often up to 10 or 12 months. Meanwhile, the injured worker is suffering and not receiving any compensation. One solution that I often recommend to my clients is proposing a "tiebreaker" IME to the carrier/employer's attorney. A tiebreaker is a truly "independent" medical exam where the physician is agreed to by the two parties and a joint letter sent explaining the tiebreaker agreement.

There are positives and negatives about these kinds of agreements. On the positive side, the injured worker gets a decision about their claim much sooner and it is made by a doctor, not a judge. On the negative side, if the doctor indicates that no further treatment is needed, the injured worker is bound by that opinion.

Tiebreaker IME's aren't always the best option, but in cases where I feel that the diagnostic testing is strong and my client is very credible, I'm comfortable recommending them as an alternative to the lengthy litigation process.

Chad T. Snow and his associates at Snow, Carpio, and Weekley are workers compensation attorneys in Phoenix and Tucson Arizona. Their office can be reached at (602) 532-0700 or (520) 647-9000.

Do I Need to Answer Interrogatories in AZ Work Comp Case?

Many clients who are litigating their work injury claims in Arizona call us after they receive a large packet of information from the attorney representing the insurance carrier. One of the most intimidating contents of this packet are the "interrogatories", which are a series of (usually 25) written questions about the injury, witnesses, medical treatment received, and legal defenses/arguments that will be presented at hearing.

I rarely answer interrogatories for two reasons: (1) the insurance company's attorney will be taking your deposition (under oath) soon anyways so they can get the information verbally at that time; (2) they're a huge waste of time.

However, if the carrier's attorney insists on getting answers to the Interrogatories, it is always advisable to answer them. Sometimes, the attorney will ask the judge presiding over your case to issue an Order compelling you to answer the interrogatories. If you receive such an order from the judge, answer the interrogatories IMMEDIATELY. Failure to do so can result in your request for hearing being dismissed or the judge entering some other sanction against you, including having the pay the attorney's fees of the carrier's attorney for the time spent forcing you to answer.

If you have questions about Interrogatories that you've received, the deposition, or the hearing process or your workman's comp claim in general, please contact Snow, Carpio, and Weekley at (602) 532-0700 or (520) 647-9000.

Waddel's Signs - Defense Doctors are the Real Fakers

One of the most common techniques that Defense IME doctors use to discredit injured workers is the use of "Waddell's Signs".  Doctors hired by the insurance carrier will say that an injured worker has positive Waddel's signs to show that they are exaggerating their symptoms or outright faking their injuries. 

The test is named after a physician researcher, Gordon Waddell, who originally intended it to be used as a technique to determine appropriate patients for back procedures such as discography.  It consists of several physical tests including axial compression (pushing down on the top of the head, which shouldn't cause low back pain), distracted straight leg raising, overreaction to stimulus, and complaints of pain in areas that shouldn't have pain from the injured body part. 

A little research, however, has given me ammunition to combat this technique.  First, my partner found an obscure reference in the AMA Guides to the Evaluation of Permanent Impairment that indicates that the use of Waddell's Signs is inappropriate in non-Anglo patients.  That counts out about 80% of my clients. 

Also, a quick Wikipedia search showed that numerous recent medical studies have criticized the use of Waddell's signs and show that they have been misused by the medical community.  For example, a 2004 study by Fishbain showed that In a 2004 review, Fishbain, et al. concluded, "there was little evidence for the claims of an association between Waddell signs and secondary gain and malingering. The preponderance of the evidence points to the opposite: no association".

I can't wait to spring those on the next sheisty defense IME doctor who's trying to paint my client out as a faker. 

Chad T. Snow is an attorney who has handled over 5,000 hearings at the industrial commission of Arizona for injured workers.  He has offices in Phoenix and Tucson, Arizona and handles exclusively Arizona workers compensation claims.  He can be reached through his firm's website, Snow, Carpio, and Weekley.

Where You Get Your MRI Matters (AZ Workers Comp)

I learned something new today - there is a huge difference in quality between MRI facilities.  I was at an Industrial Commission of Arizona hearing where one of my favorite doctors, Brad Sorosky, was testifying.  Dr. Sorosky has a great way of explaining things in ways that normal non-doctors can understand.  The carrier in this case had agreed to pay for an updated MRI since the previous one was of poor quality.  Knowing that carriers always try to send injured workers to the cheapest facility possible, I asked Dr. Sorosky if there was a difference in quality between one facility and another.  He said that there definitely was and gave a perfect analogy:  he explained that it is the difference between taking a picture on your cell phone and taking a picture with a high quality Nikon camera.  He recommended any facility that has 3T technology (whatever that is...) 

I don't know about you, but if I've suffered an on-the-job back injury and the decision whether or not to do surgery depends on an MRI, I want the picture taken with the highest quality diagnostic equipment available, not the one that's going to save the insurance carrier a couple hundred bucks. 

Remember that in Arizona workers comp, unless your Employer is self-insured, you have the right to direct your own medical care.  I personally think that that extends to where diagnostic studies are performed.  The carrier is required to pay for treatment under the Industrial Commission Fee Schedule.  You want the best care possible.  Always ask your doctor which facility they prefer for their diagnostic imaging and insist on getting the MRI, CT, EMG, or whatever at that facility. 

Chad T. Snow is an Arizona Workers (workmans) compensation attorney with offices in Phoenix and Tucson.  He has represented thousands of injured workers before the Industrial Commission and Court of Appeals.  He can be reached at his website, Snow, Carpio, and Weekley, or at (602) 532-0700 and (520) 647-9000. 

Reasonable Degree of Medical Probability

As a follow up on my last post, I, Chad Snow of Snow, Carpio, and Weekley, want to discuss the burden of proof that applicant's have in their hearings before the Industrial Commission of Arizona.  At the end of almost every hearing involving a medical witness at the ICA, the attorney performing the direct exam will ask a question like "do you hold the opinions you've given today to a reasonable degree of medical probability?"  All this means is that the doctor must feel that it is more likely than not that his opinions are correct.  In other words, is the doctor 51% or more sure that what he has testified to is correct.  For example, a doctor can never say with absolute certainty that a herniated disc on an MRI is without any doubt related to an industrial injury.  But he can say that, if the applicant never had low back pain before the injury, had a mechanism of injury that could cause a herniated disc, and has had low back and leg pain ever since in the appropriate distribution, that it is more likely than not related to the injury.  If a doctor testifies that something is a mere possibility as opposed to a probability, then the applicant has not met his or her burden. 

This is a lower burden than, for example, what many people are used to hearing in criminal cases:  beyond a reasonable doubt - which is with almost certainty.

Direct Exam of Medical Witness in Arizona Workers Compensation Claim

Most Arizona work comp litigation requires expert testimony from a medical expert as part of the injured worker's burden of proof.  Asking questions of the medical expert is part science, part art.  The following is a very basic outline that I follow when questioning my own medical expert:

1.  Professional qualifications (licensed to practice in Arizona, field of specialty, board certification)
2.  Scope of treatment (treating doctor or IME)
3.  What records did you review as a basis for your opinions?
4.  What was your understanding of the mechanism of injury (how accident happened)
5.  What treatment had the injured worker undergone prior to you seeing him/her?
6.  What are the applicant's subjective complaints?
7.  You conducted a physical exam?  What significant findings? 
8.  Did you review any diagnostic studies (MRI, x-rays, EMG, etc)?
9.  Based on the mechanism of injury, the applicant's subjective complaints, the objective findings on physical exam and diagnostics, were you able to reach a diagnosis related to the industrial injury?
WHEN ISSUE IS CONTINUING BENEFITS
10.  Do you feel the applicant's condition is medically stationary or is there further active care that could reasonably be expected to improve his/her condition?
11.  Do you feel he/she has sustained a permanent impairment under the Sixth Edition of the AMA Guides or is it too early to tell pending further care?
12.  Are there additional diagnostic tests that are necessary?
13.  What work restrictions would you impose?
WHEN ISSUE IS REOPENING
*Were you able to identify a new, additional or previously undiscovered condition causally related to the industrial injury? 
IF CREDIBILITY IS AT ISSUE
*Did you notice any symptoms magnification, Waddell's signs, or other red flags? 

This is, of course, a very crude outline and needs to be adjusted according to the strengths and weaknesses of your case.

Chad T. Snow is an attorney with Snow, Carpio, and Weekley who has done over 5,000 hearings at the Industrial Commission of Arizona.  He has offices in Phoenix and Tucson, Arizona and can be reached at (602) 532-0700 or (520) 647-9000. 

Cross Examining the Defense Medical Expert in AZ Workers Comp Hearing

In law school, there is a famous video called "The Ten Commandments of Cross-Examination".  They are:

1. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Don't ask a question to which you do not know the answer.
5. Listen to the witness' answers.
6. Don't quarrel with the witness.
7. Don't allow the witness to repeat his direct testimony.
8. Don't permit the witness to explain his answers.
9. Don't ask the "one question too many."
10. Save the ultimate point of your cross for summation

I had two hearings today which perfectly demonstrated these Commandments.  In the first, I was cross-examining Dr. McLean, who is a very well respected expert that I use on many of my own cases.  I knew that I wasn't going to change Dr. McLean's opinion, I just wanted him to agree with a few of the stronger points of my case.  I only asked him leading questions that I already knew the answer to.  I asked him to concede the points of my case that were the strongest.  This has a twofold purpose - if the doctor concedes, it adds credibility to your own medical witness, if he refuses to concede the obvious, it makes him look partisan and ridiculous.  Dr. McLean agreed with the few points that I brought up and I ended on that. 

In the second case, a less seasoned defense attorney was cross examining my medical expert.  Every question he asked was open ended, which only allowed my doctor further chance to explain himself and address any doubts that the ALJ might have had.  He also kept trying to push the same point which is futile - you are never going to convince a board certified fellowship trained orthopedic surgeon that he's been wrong all along.  Finally, he allowed my expert to go on and on explaining himself.  He made my case more than I did. 

Of course, there is always what I like to call "The Overholt Rule", named after a former ALJ at the Industrial Commission.  Judge Overholt taught me early on that "most of the time, the best cross examination is 'no questions Your Honor."  In other words, let your expert's opinion stand on its own, don't give the other expert any further chance to explain himself or defend his position.  Good advice. 

Chad T. Snow is an attorney who practices in the area of workers compensation in Arizona with offices in Phoenix and Tucson.  He can be reached at (602) 532-0700, (520) 647-9000, or through his firm's website at Snow, Carpio, and Weekley.

Submitting Lay Evidence in a Work Comp Claim in Arizona

I have an interesting case here at Snow, Carpio, and Weekley that is going to hearing next week where one of the issues is how hot it was the day that the injury took place.  My client is claiming that he was working in a paint booth where the temperatures reached up to 130 degrees on the day in question.  The Employer's witnesses are saying it wasn't very hot that day.  So I turned where any great lawyer would turn for evidence:  I Googled it!!!  I found great evidence from the National Oceanic and Atmospheric Administration website about the temperature in Tucson on the date my client was injured.  I found out that a record was set that day for the highest minimum temperature ever for that date.  It was also the 6th day in a row of temperatures at least 13 degrees above normal.  I simply printed up the table and submitted it as evidence.  Who would have thought that what could be the winning evidence in a huge case would come from a simple internet search?