What I Learned About Immigration Law - Some Misconceptions

I recently tried to help a friend with some immigration issues and learned quite a bit about our country's immigration problems. 

HOW SCREWED UP IS OUR IMMIGRATION POLICY? 

First, let me tell you about an experience I had on an airport shuttle a couple of years ago in Salt Lake City.  I struck up a conversation with a very nice young man from India.  Upon finding out that I was an attorney, he asked if I knew anything about immigration.  I told him that, unfortunately, I did not.  He then explained that he had recently graduated from Harvard University Medical School with a degree in pharmaceutical engineering but had been unable to secure a visa or work permit to remain legally in the United States.  I remember thinking how ridiculous that was - that our country would deny residency to someone who could so clearly contribute to our society.  I personally think that we should staple a green card to every diploma handed out to a foreign student at any university.  But I digress....

IMMIGRATING "THE RIGHT WAY"

My friend I mentioned above has lived in the United States since 1995.  Like most illegal immigrants, she entered legally and overstayed her visa.  (So much for building the danged fence)  She has never had any run-ins with the law and has worked the entire time.  She has assimilated herself completely into American society.  In 1997, she applied for legal residency through a sister who is a U.S. citizen.  She has done everything the United States has asked her to do to immigrate legally - and yet she still waits.  I think of her when I hear anti-immigrant people say things like "we don't have a problem with immigrants as long as they do it the right way."  So my friend has waited almost 15 years of "trying to do it the right way" and still no results.  This is a bright, educated, law abiding, hard working person. 

ANCHOR BABIES

I also found out that for a U.S. citizen to petition for a parent to gain legal residence, the petitioning citizen-child must be over the age of 21.  U.S. citizens who are under the age of 21 cannot petition for their parents under any circumstances.  This kind of dispells the myth of what nativists like to call "anchor babies".  If an illegal alien has a baby today that is granted birthright citizenship, that baby will not even be able to apply for their parents for 21 years - and then will face a process of about 10 years until it is approved.  So that illegal alien parent might gain legal residence through their "anchor baby" in 31 years...  Now that's foresight!!!

WAITING PERIODS

A U.S. citizen can apply for residency for their unmarried children under the age of 21.  However, if the child is from Mexico, the waiting period for legal residency is 8 years, 13 years if they're from the Phillipines.  If the child is over the age of 21, the waiting period for Mexican citizens is 12 years.  Many people think that a U.S. citizen can apply for residency for their non-citizen spouse and that it is given automatically.  Not so.  The wait for citizens of most countries is over 5 years.  For citizens of Mexico, it's over 7 1/2 years.  I've had marriages that lasted less than the waiting period!!!  If a U.S. citizen applies for residency for a brother or sister, the wait for Filipinos is over 20 years, 12 years for most other countries. 

Pardon the soapbox, but I think this information shows how broken our immigration system is.  People who are anti-immigrant probably have no idea how difficult it is to come to the U.S. legally.  The United States should develop an immigration system that welcomes healthy, educated, law abiding peoples from around the world to contribute to the growth of our country. We should also encourage the unification of families. 

Chad T. Snow is an attorney who handles workers compensation matters in Arizona.  He has offices in Phoenix and Tucson and can be reached at the Snow, Carpio, and Weekley website or at (602) 532-0700, or (520) 647-9000. 

Injuries that Occur as a Result of Fights at Work

Some of our most interesting cases have been those where the injuries were the results of fights or assaults at work.  The general rule of whether or not these injuries are compensable is whether or not the subject matter of the fight was related to the work or was personal.  This rule applies equally to both the aggressor and the victim of the assault. 

For example, I recently litigated a case where my client had been arguing all day with a co-worker about the co-worker's sloppy work that was keeping them from finishing a job on time.  The co-worker started cursing at my client, who shoved the co-worker, who then punched my client, knocking him over and fracturing his ankle as he tried to maintain his balance.  Because the subject nature of the argument was related to the work, the claim was found compensable.  On the other hand, if the two had been fighting over a personal matter, such as a girlfriend, the injury would not be considered as arising out of the employment. 

These cases are usually very awkward to litigate because many times the people who have fought are in the courtroom together and sometimes they describe the altercation in very colorful language.  Hearing Kathy Hansen interpret the words "te voy a reventar el osico" and "revamientemelo pues, vieja puta" is one of the highlights of my career! 

Chad T. Snow is an attorney who handles exclusively workers compensation matters before the Industrial Commission of Arizona.  he can be reached at Snow, Carpio, and Weekley in Phoenix at (602) 532-0700 and in Tucson at (520) 647-9000. 

Injuries that Occur Outside the State of Arizona

Occasionally we'll have a client who lives in Arizona who is injured while working outside the state of Arizona.  These injured workers are still entitled to benefits under Arizona law in several circumstances.  First, if they were hired within the state, they are covered under Arizona law (A.R.S. 23-904(A)).  Employees injured outside the state are also entitled to compensation if they are "regularly employed" within the state.  "Regularly employed" depends on consideration of such factors as where the employee spends most of his or her work time, where the paychecks are issued, and where the job assigments originate. 

These types of injuries are frequent with over the road truck drivers, road construction crews, and other types of workers whose jobs may take them from time to time to other states.  For more detailed information, you should contact an attorney at Snow, Carpio, and Weekley.

Am I Entitled to Job Retraining After My Work Injury?

Many clients ask if the employer or insurance carrier is required to provide job retraining if their industrial injury prevents them from returning to the job they were performing at the time of their injury.  The short answer is "no".  The long answer is that there are two other alternatives for obtaining what is commonly called Vocational Rehabilitation following an on the job injury in Arizona. 

The first is through the Industrial Commission's Special Fund Division.  In certain categories of cases, injured workers are eligible to have schooling paid for along with books and other expenses.  The Special Fund is funded by a surcharge of 1.5 % on all workers comp premiums paid in Arizona. 

The other option is through the Department of Economic Security's Department of Vocational Rehabilitation.  The criteria for DES voc rehab has traditionally been a little more lax than the Special Fund's - however, with recent cutbacks in state government programs, it is unsure how likely it is that injured workers will continue to get vocational rehab through DES. 

I have many clients who have taken advantage of these voc rehab programs and have actually ended up with higher salaries than they had at the time of their on the job injury.  If you have any questions about retraining for a new career following an Arizona industrial injury, contact me through our website at Snow, Carpio, and Weekley.

What is the Industrial Commission of Arizona?

The Industrial Commission of Arizona is a state administrative agency that oversees work injuries, occupational safety, labor rights, and several other functions related to labor.  The Commission is led by five "commissioners" appointed by the governor to staggered five year terms.  The Director of the ICA, currently Laura McGrory, is responsible for the day to day operations of the Commission. 

With regard to administration of workers compensation claims, the Commission has several important Divisions. 

1.  The Special Fund Division is responsible for processing all claims by injured workers against non-insured employers.  The Special Fund also provides vocational rehabilitation in some cases and indemnifies carriers in second injury cases.
2.  The Claims Division - handles various claims processing functions such as determining Average Monthly Wage, ruling on Petitions for Change of Doctor, and Findings and Awards in cases of Permanent Disability.  Claims Division can be reached at (602) 542-4661
3.  Administrative Law Judge Division - ALJ's decide contested cases dealing with the Workers Compensation Act (and OSHA citations also).   ALJ Division can be reached at (602) 542-5241

Chad T. Snow is an attorney with Snow, Carpio, and Weekley who handles exclusively workers compensation claims in Arizona.  He has offices in Phoenix and Tucson and can be found at the Industrial Commission just about every day.  He has handled over 5,000 hearings at the ICA.  He can be reached at (602) 532-0700 or (520) 647-9000. 

What is the State Compensation Fund?

When Arizona passed the first Workers Compensation Act in 1925, the Industrial Commission of Arizona acted not only as the state agency administering claims, but as a state owned insurance company with the authority to regulate other insurers providing workers comp coverage in Arizona.  This presented more than the mere appearance of a conflict of interest.  So in 1968, the legislature created a separate agency, the State Compensation Fund, to be operated as a separate, but still state owned, insurance company.  Since 1991, the State Compensation Fund has operated as a quasi state agency that offers work comp coverage more or less on equal footing with private carriers.  More recently, the "Fund" as it is often referred to, has become more or less a private mutual insurance company.  Renamed SCF Arizona in recent years, the "Fund" continues to evolve into a completely private insurance company with fewer and fewer ties to the state. 

However, many of our clients still confuse the "State Compensation Fund" with the Industrial Commission of Arizona, which is still the state agency governing work injuries in Arizona. 

My experience with SCF Arizona is that it is one of the easiest insurance companies to deal with, both on administration of claims, as well as litigation.  SCF has offices in Phoenix and Tucson, although all claims processing is handled out of Phoenix. 

Chad T. Snow is an attorney who handles exclusively workers compensation claims in Arizona.  He has offices in Phoenix and Tucson and can be reached through his website at Snow, Carpio, and Weekely.

Goodbye to Our Friend Jorge Solchaga

Snow and Carpio wishes a warm goodbye to our friend Jorge Solchaga, who has been in charge of Protection of Mexican Citizens in the Exterior for the Mexican Consulate in Phoenix for the last seven years.  We attended a small reception in Jorge's honor tonight at Avanti Restaurant, hosted by consul general Victor Manuel Trevino Escudero.  Jorge has helped thousands of Mexican citizens deal with innumerable difficulties during the last few turbulent years in Arizona.  We were impressed that several U.S. government officials, including a representative from Immigration and Customs Enforcement (ICE) came to pay respect to Sr. Solchaga, even presenting him a plaque to recognize his professionalism. 

We wish Jorge the best as he takes on a new post in the Consulate in Los Angeles.  As he said tonight, L.A. might be the largest consulate, but Phoenix is the most important.  We will miss you Jorge!  Que te vaya bien!

Spring Break Time in Mexico!!!

I'll be gone for the next few days in Rocky Point (Puerto Penasco) Mexico for Spring Break!!!  Before you get any images of Girls Gone Wild, Beer Bongs, and wild parties, remember that I have five kids...  When I tell people I'm going to Mexico, many get wide eyed and say "are you sure it's safe down there."  Honestly, I've never felt the least bit threatened in the 30 years I've been going to Rocky Point.  In fact, Phoenix New Times just did an article that says that A.S.U. college students are statistically safer in Rocky Point than they are on A.S.U.'s campus.  Rocky Point has HALF the murder rate of New Orleans.  An American citizen hasn't been murdered in Rocky Point since 1991 - which was when a husband killed his wife so that he could be with his girlfriend, Ysenia - who he found out at the trial used to be a man...  But I digress!  The place is absolutely safe and is a blast.

I'll be back blogging for Snow, Carpio, and Weekley next week!

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.

Endorsement of Endurance Rehab

If anyone has any kind of injury that requires physical therapy, I highly recommend Endurance Rehabilitation.  I was referred to Endurance by one of the Industrial Commission judges who had treated there, and I couldn't be more pleased with the treatment I've received.  Having gone through extensive rehabilitation for a previous knee injury on two occasions, I know that having the right physical therapist can make a huge difference in your outcome following surgery.  You can learn more about Endurance Rehab on their website at http://www.endurancerehab.com/ 

Although I haven't treated there personally, many of my clients have also spoken highly of Strength Training International or S.T.I. Physical Therapy.  I would recommend them as well. 

Chad T. Snow is an attorney with Snow, Carpio, and Weekely. He has offices in Phoenix and Tucson, Arizona who represents those injured on the job.  He can be reached at (602) 532-0700 or (520) 647-9000. 

What Are the AMA Guides in Arizona Workers Comp?

Determination of permanent disability in Arizona work injury claims is governed by a book published by the American Medical Association called The Guides to the Evaluation of Permanent Impairment.  The Guides have a section for each of the major body parts which give uniform rules for doctors to "rate" permanent impairments in injuries.  Although the rules are supposed to be uniform, they are often interpreted very differently by different doctors.  I recently had a case where one doctor found my client had a 28% impairment, another found he had a 42% and a third found a 61% - all looking at the same table!

Some doctors think that the Guides are perfect, and won't deviate from them at all.  Others say that they are what they say they are - only a "guide" to help in reaching a determination of how an injury has really affected the overall function of the body part. 

In cases of "scheduled" injuries, the doctor's rating under the Guides is the most important factor in determining how much compensation the injured worker will receive for his or her injury.  In unscheduled injuries, the actual percentage rating is unimportant, as long as the injured worker has at least a 1% permanent impairment. 

Chad T. Snow is a workers compensation attorney who has represented thousands of injured workers in Arizona.  He has offices in both Phoenix and Tucson.  He can be reached at (602) 532-0700, (520) 647-9000, or on his website at Snow, Carpio, and Weekley.

Different Issues in Work Comp Claim in Arizona

There are several different issues that can arise in an Arizona workers compensation claim.  Being able to identify these issues is usually the expertise of a workers compensation attorney.  Knowing the difference is extremely important in deciding what evidence to submit, what witnesses to call, and what your burden of proof is.  The main issues that we encounter are as follows:

1.  Compensability - this refers to whether or not a claim is accepted as an industrial responsibility.  For example, if a carrier denies the claim and you request a hearing, the issue at the hearing is compensability.  Compensability cases usually have several sub-issues including forthwith reporting, pre-existing conditions, credibility of the witnesses, and many others.
2.  Continuing benefits - a case goes to hearing on continuing benefits when it is an accepted claim that is subsequently closed out by the insurance carrier.  If the injured worker disagrees with the closure, he or she requests a hearing arguing for continuing benefits.  This always requires medical expert witness testmony to prove the need for additional active medical care.
3.  Permanent impairment - when there is a dispute about either the existence of a permanent impairment or the extent of the permanent impairment in cases of scheduled injuries.  Medical expert testimony is necessary.
4.  Loss of Earning Capacity (LEC) - where an injured worker has sustained an unscheduled injury (see prior blog post about scheduled vs. unscheduled injuries) and there is a dispute about his post-injury earning capacity compared to what he earned prior to his injury.  If there is a loss of earnings as a result of the injury, he may be entitled to permanent compensation benefits.  Usually requires expert vocational testimony and sometime expert medical testimony if there is a dispute about restrictions.
5.  Supportive Care - if there is a dispute about the sufficiency of the supportive care awarded by the carrier vs. that recommended by the treating doctor.

These 5 issues encompass about 95% of all hearings at the ICA (in my experience).  There are, of course, other issues that rarely come up such as mileage reimbursement, choice of doctors, unpaid compensation, bad faith, and many others. 

Chad T. Snow is an attorney who handles exclusively workers compensation claims in Arizona.  He can be reached through his website at Snow, Carpio, and Weekley.

Doctors Aren't Always Right

I had a doctor testify in a hearing today who I normally respect but who had it all wrong in this case.  At issue was whether or not walking on crutches and placing all of one's weight on their non-injured foot can aggravate an underlying asymptomatic condition in their heel.  This doctor, who shall remain nameless, testified that it is impossible for someone to develop increased pain in the uninjured leg/foot from placing all their weight on it while recovering from surgery. 

I've never wanted to take the stand and testify worse than I did today.  I had surgery on my right knee three weeks ago and have been using crutches and placing all my weight on my left leg.  And guess what?  My left leg hurts worse than the one that had surgery!  It just goes to show that doctors can have their opinions - but they are just that - opinions.  I've had doctors in other cases testify that knee injuries shouldn't result in any restrictions on prolonged sitting.  Bullcrap.  I can only sit comfortably for about 30 minutes until my right leg falls asleep and I need to stand for a few minutes. 

Some other things I've learned to believe my clients more since my injury:

1.  Using crutches for long periods of time hurts your hands, wrists, and shoulders.
2.  It is hard to sleep after an injury like this, which makes you tired all day, and makes it hard to concentrate.
3.  It would be hard to survive if I wasn't able to work and had to wait to litigate my workers compensation claim. 
4.  Doctors make you wait in their waiting rooms much much much longer than lawyers. 

Chad T. Snow is an attorney who practices exclusively workers compensation and Social Security Disability in Phoenix and Tucson, Arizona.  He is the founder of Snow, Carpio, and Weekley, who can be reached at (602) 532-0700 or (520) 647-9000. 

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?

Letting the Insurance Carrier Pick Your Doctor

I had a potential client call me yesterday and cancel our appointment to meet because he said "the insurance carrier told me they would help me find a specialist, so I don't need an attorney right now."  He didn't seem to understand that the insurance carrier might not have his best interest at heart.  He probably still believes in the Easter Bunny and Santa Claus as well.  I guarantee he'll be calling me sooner rather than later. 

I'm not one of those attorneys that spends all my time slamming insurance companies - they have a right to make money like any other business.  But make no mistake about it, they are for profit companies in the business of making money.  And they make money by keeping the cost of claims down, which means paying you as little as possible in compensation and keeping your medical costs to a minimum.  Their most effective tool at both of these is getting injured workers to treat with the carrier's preferred physicians. 

The treating physician controls everything in an Arizona workers compensation claim.  Every carrier has hand picked doctors in every specialty that they send a lot of business to and therefore are somewhat beholden to the carrier.  They provide a minimal amount of medical care and release the injured worker back to work oftentimes well before he or she is ready.  At the end of the case, they either give very low percentages of permanent disability or little or no work restrictions to minimize the amount of permanent compensation that the carrier has to pay the injured worker. 

THe only question now is whether that potential client will be calling me because the carrier's hand picked doctor closed his case out too soon, released him back to regular work even though he can't do it, won't provide him medications, or a host of other things that save the carrier money...

Chad T. Snow is an attorney and the founder of Snow, Carpio, Weekley in Phoenix and Tucson Arizona who specializes in workers compensation claims.  He has represented thousands of Arizona's injured workers.

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What is a Vocational Expert in Arizona Work Comp Claim?

Any time an injured worker in Arizona is trying to prove that he or she has lost earning capacity as a result of their industrial injury, it is usually necessary to hire a vocational expert, otherwise known as a labor market expert or consultant (VE, LMC).  This is a person who is trained to know the physical and vocational requirements of every job in a specific labor market.  The LMC is then given the vocational profile and work restrictions of the injured worker, and they then identify jobs that exist in significant numbers in the labor market where the injured worker lives, that they should be able to do even with their permanent restrictions. 

In cases where the Loss of Earning Capacity (LEC) is disputed, the applicant and the insurance carrier both usually retain their own LMC's.  The LMC's give testimony at a hearing trying to convince the judge that their opinion as to the injured worker's employability is more probably correct. 

Labor market experts are a very important part of obtaining permanent benefits and are usually well worth the investment of $400-1,000 that they cost.  For more information, see our website at Snow, Carpio, and Weekley.


Snow, Carpio, and Weekely are attorneys who have represented thousands of injured workers in Arizona since 2000.  They have offices in Phoenix and Tucson Arizona.