Blog by
Nick Wearne
Associate Attorney
Snow, Carpio & Weekley, PLC
Many of our blog posts are focused in on specific workers’ compensation issues. However, one of the first things we like to do when clients come in is walk them through the natural progression of a case so they get the big picture. A typical workers compensation case proceeds as follows.
Step 1:
An Injury Occurs at Work
The workers’ compensation system is a no fault system. That means that if you are injured you are entitled to compensation regardless of whose fault it was. However, the injury must occur while you are on the job. Work breaks, lunches, or any other activity that occurs on the job site is usually considered ‘on the job.’ Driving to and from work unfortunately is not.
Step 2:
Forthwith Reporting
Once an injury has occurred the law says you must forthwith report the injury to your employer. While the precise definition of the word forthwith is unclear, it essentially means immediately.
In professions where it is common for a worker to become sore from the days work, and injury symptoms originally presented as soreness, it is ok to wait a few days. But, when in doubt, report immediately!
Step 3:
Active Care
Once an injury has occurred you should go to the doctor and will begin to receive active care. Active care is medical treatment designed to help you get better.
If you have been injured do not wait to go to the doctor, as this may hurt your case. If your employer does not send you, schedule an appointment yourself or report at the emergency room. While going through active care your functioning capacity should begin to improve.
Step 4:
Forms 101, 102, and 407
Within 10 days of your injury your employer should file a document referred to as Form 101 with the Arizona Industrial Commission. Likewise your doctor should file a Form 102, reporting the injury to the Industrial Commission.
If your employer and your doctor have not filed these forms, you can report the accident yourself by filling out Form 407 and sending it to the Arizona Industrial Commission.
Step 5:
The Insurance Carrier Accepts or Denies Your Claim
Once the appropriate forms have been filed, the information gets sent to your employer’s insurance carrier. The insurance carrier then accepts or denies the claim. If a claim is wrongfully denied we can request a court hearing and will protest the decision.
At times we have clients come in telling us that their employer does not have an insurance carrier so they never filed a claim. All employers are required by law to carry workmans’ compensation insurance and their carrier is kept on file with the Arizona Industrial Commission.
Step 6:
Average Monthly Wage is Determined
Once a claim has been accepted, the insurance carrier sends information to the Industrial Commission explaining what they think your average monthly wage was at the time of the accident.
Normally you’re the carrier will send in the amount you earned in the last 30 days. The Industrial Commission reads through the information sent over by the insurance carrier and they make their own determination. If for some reason you feel the average monthly wage determination is incorrect we protest the amount by scheduling a hearing and by collecting information showing the amount was incorrect.
Common reasons for protesting an average monthly wage determination is that the worker had more than one job, the worker took some vacation time in the month before they were injured, etc. It is extremely important to be sure your average monthly wage is correct because the benefits you receive will be based on this amount.
Step 7:
Temporarily Totally Disabled (TTD) or Temporarily Partially Disabled (TPD)
Remember, at this time you are in active care, care designed to help you get better. During your active medical care you are also entitled to lost wages. The amount you receive in lost wages will vary depending on if you are TTD or TPD.
Temporarily Totally Disabled means the doctor has said you cannot work at all. Our clients are often TTD after they come out of a serious surgery or if they have had broken bones.
When a person is TTD they are entitled to 66.67% of their average monthly wage split up into two payments a month, no questions asked.
Temporarily Partially Disabled means the doctor has put you on light duty. Our clients may be designated as TPD when they are going through physical therapy and rehabilitation. During this time you must ask their employer if they have light work for you to do. If you have been fired, you must look for light duty jobs. If you find a job doing light duty, or if your employer gives you a job doing light duty, you are entitled to 66.67% of the difference between what you would have made without the injury and what you now make.
If you cannot find work you are entitled to 66.67% of your average monthly wage, payable once a month.
You are entitled to these benefits from the date of your injury, but often times you will not receive them till you average monthly wage has been determined. Fortunately, benefits are retroactive, and the company will give you back pay for all the payments they missed.
Step 8:
Maximum Medical Improvement
At some point in your treatment you will become medically stationary. This means you will have improved as much as the doctors think you are going to improve. Hopefully this means you are a 100% better.
Unfortunately, for most clients, it means that they have plateaued at some percentage and rather than treating you to get better, the doctors merely try and keep you stable. This type of medical care is called supportive care and usually includes things like occasional physical therapy, pain medications, epidural injections, etc.
Often times the insurance carrier will schedule an independent medical examination during your active care. For this appointment they will send you to a different doctor hoping that he/she will say you have reached maximum improvement. The insurance company has the right to do this and you must attend these examinations. We will often protest maximum medical improvement designations and will schedule a court hearing to try and keep you in active care.
Step 9:
Post Injury Benefits
Once you’ve reached Medical Stability and are receiving supportive care, your benefits change. You will always be entitled to your supportive medical care. However, the lost wages you will receive from that point on depend on whether your injury is scheduled or unscheduled.
An injury is scheduled if it is listed in A.R.S. 23-1044. Scheduled injuries include injuries to a finger, a hand, an arm, a foot, a leg, ears, an eye, and facial scars. For scheduled injuries the amount of compensation has already been set by statute. However, the amounts set by statute are for total loss. A total loss injury is one where the injured body part is severed or is left completely dysfunctional. If you have not experienced a total loss but instead, a loss in function, then you will receive some percentage of the amount laid out in the statute.
Any injuries not listed in A.R.S. 23-1044 are unscheduled injuries. If you have two or more scheduled injuries, they too become unscheduled injuries. When you have a unscheduled injury your compensation will be based on your loss in earning capacity. Someone at the Industrial Commission will look at your injury restrictions as well as your education and will determine what your earning capacity is. If we do not agree with the Industrial Commission’s determination we will protest it and hire a labor market expert to testify in a court hearing about what your lost earning capacity should really be.
Once your loss in earning capacity has been determined you will receive 55% of that amount, payable monthly, for the rest of your life. If it is determined you have experienced a total loss in earning capacity, or in other words that you can make no money, then you will receive 66.67% of your average monthly wage, paid monthly, for the rest of your life.
Step 10:
Reopening a case
While receiving your post injury benefits, you will be receiving supportive care only. Some clients receive supportive care for the rest of their life and never need more than that. Other clients experience complications with their injuries and they require further active care such as a second surgery or further testing. If active care becomes necessary, we can petition the Industrial Commission to reopen the case. If we are successful in reopening the case you will repeat steps 7-9.
Attorney Nick Wearn is an Associate Attorney at Snow, Carpio & Weekley, PLC. For more information on work injuries or how our firm can assist you, please call us at 855-325-4781 toll free. We are happy to speak with you and set you up for a free consultation in any of our Arizona offices. You can also read more on our website at www.workinjuryaz.com.
