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. 

Industrial Commission of Arizona Claims System Down

The Industrial Commission of Arizona, the state agency charged with administering disputes in workers compensation claims and various claims procedures, has announced that their computer system will be temporarily unavailable on June 23rd and 24th for a computer system update.  The claims system and optical disk system should be back up and running on Monday June 27th. 

The Claims Division handles processing of on the job injury claims, notifies employer's insurance carriers, sets average monthly wage in claims, processes requests of injured workers to change doctors or leave the state, and determines the amount of permanent compensation an injured worker receives. 

Chad T. Snow is a workers compensation attorney in Arizona with offices in Phoenix and Tucson.  He can be reached through his website at Snow, Carpio, and Weekley.

New Average Monthly Wage for 2010 Arizona Work Injuries

The Industrial Commission of Arizona has come out with the new statutory maximum average monthly wage for all injuries occurring in 2012.  The new maximum wage will be $4,062.29.  This is the highest monthly earnings that can be considered in calculating any kind of compensation in an Arizona Workers comp case.  Temporary compensation is paid at 66 2/3 percent of the average monthly wage and permanent partial at 55% of the difference between the AMW and whatever the injured worker is able to earn thereafter. 

As recently as 2007, the max wage was only $2,400.00, meaning that the most an injured worker could receive in compensation per month was $1,600.00.  This severely penalized higher wage workers who were injured on the job.  The Arizona Association of Lawyers of Injured Workers, of whom Alex Carpio and I are members, fought hard at the legislature to get raises in the maximum wage, to $3,000 in 2008, $3,600 in 2009, and indexed for inflation every year thereafter.  This allows higher wage workers to receive more fair compensation for time lost from work for injuries sustained on the job in Arizona. 

Chad T. Snow is a workers compensation attorney who represents injured workers before the Industrial Commission and Social Security Administration.  He can be reached at Snow, Carpio, and Weekley, or through his Phoenix office at (602) 532-0700 or in Tucson at (520) 647-9000. 

Positional Risk in Arizona Workers Compensation Claims

This is a very complex part of the workers compensation law in Arizona.  It stands for the proposition that a worker's job may place him or her at increased risk of injury just because of the inherently dangerous nature of the job.  It's really too complicated to explain in a simple blog post, but let me give two examples: 

1.  A recent case we had where a worker was on top of a pile of trash on the back of a truck and fell to the ground, sustaining a severe injury.  The employer tried to argue that he was diabetic and had probably fainted due to his diabetes which caused him to fall.  We argued that, even if that were the cause of the fall, the fact that his work placed him in a dangerous position was the real cause of the injuries, not necessarily the fall.  If he were at home sitting on the couch, he wouldn't have been injured. 

2.  A case I handled a few years ago where a truck driver had a heart attack and ran his truck into a mountain and died.  Again, the heart attack itself had nothing to do with his work, but the fact that he's driving 80,000 pounds of cargo 70 miles an hour places him at a greater "positional risk", making the effects of the injury compensable.  Again, if he were sitting on his couch at home when the heart attack occurred, he would probably still be with us today.

Just a little interesting part of Arizona Workers Compensation Law from us at Snow, Carpio, and Weekley.

It's going to be 113 by tomorrow!


Heat Exhaustion and Heat Stroke can come on very suddenly. Watch this video to see how to handle a Heat Stroke victim until emergency personnel arrive.

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In the absence of Chad Snow, blog posted by:

April Lang-Snow, Business Manager @ Snow and Carpio, PLC

General Worker's Comp Information

Arizona Workers Compensation Information


The attorneys at Snow and Carpio, PLC are an experienced advocate for the rights of Arizona workers. Arizona law requires almost all employers to carry workers compensation insurance. This insurance pays for medical treatment, rehabilitation therapy, lost wages, and some other expenses in the event a worker is injured on the job. While this coverage is for the purpose of helping workers who suffer injuries, it is not always easy to obtain the compensation to which an employee is entitled. To get the full amount of compensation you are entitled to and you deserve, contact Snow and Carpio, PLC for a free case evaluation.

No Fault System

One of the most important aspects of the workers compensation system is that it is a no fault system. Benefits are neither increased nor decreased by whose fault caused the injury. If the injury arises out of and in the course of employment it should be covered. The elimination of any fault issues is one of the ways the system has been designed to insure the delivery of prompt benefits without dispute.

Benefits

Worker’s compensation pays limited benefits. Generally, any medical expense related to the injury must be covered. You are also entitled to a percentage of your lost wages for time off work. In some cases, there is also a permanent disability benefit. In exchange for giving up full compensation for your injuries and losses the system has been designed to provide you speedy benefits. However, sometimes insurance carriers abuse the system with frivolous delays and denials. The hearing process instead of being used for resolutions of good faith disputes gets used as a built in delay mechanism to coerce settlement or claim abandonment. This can be worker’s compensation bad faith.

Reporting a Workplace Injury

Once an on-the–job injury has occurred, the employer has the right to be notified so that it may investigate the circumstances of the injury, and provide treatment to minimize the injury. This legal requirement operates in the interests of both parties. A prejudicial failure to report an injury may act to bar the entire workers compensation claim, therefore it’s important to report an injury to an employer as soon as you reasonably believe you have suffered an injury that will involve medical care or time off work.

Filing an Arizona Workers Compensation Claim

It is also important to file an Arizona workers compensation claim as soon as possible, because it generally takes about 30 days to receive an initial determination of the insurance carrier’s acceptance or denial of a claim. The workers compensation claim may be filed with the Industrial Commission of Arizona in one of two ways. The injured worker may file the claim directly with the Arizona Industrial Commission or the physician or hospital attending an injured worker will do so, as they are required to report any industrial accidents to the Industrial Commission.

Claim Acceptance or Denial

Once the Industrial Commission of Arizona (ICA) receives the filed claim, it will notify the employer’s insurance carrier of the claim. There is no limit for the ICA to perform the notification, but it generally takes 7-10 days. Once the insurance carrier is notified of the claim, it has 21 days to formally accept or deny the claim. If the carrier does not respond to the claim within those 21 days, the carrier is responsible to provide benefits from the date of notice as if it had accepted the claim until such time it issues a formal denial.

Workers’ Compensation Hearing Process

If a claim is denied, a hearing request must be filed with the Industrial Commission of Arizona. The claim will then be set for hearing before an Arizona Administrative Law Judge. Both sides have a right to present evidence, including witnesses, medical records, and physician testimony. Once an issue becomes contested and the hearing process has begun, it generally takes a minimum six months and frequently up to one year for resolution by a judicial award. Having an experienced workers compensation lawyer at the hearing is often critical, as there are numerous issues that can be disputed and be presented at hearings in a workers’ compensation claim.

Medical & Disability Stages

Generally, there are three stages to an accepted workers’ compensation claim; temporary total disability (TTD), temporary partial disability (TPD), and permanent partial disability (PPD). Each of these stages is based upon medical decisions. Stage changes will be based on the opinions of your treating physician or from the carrier’s “independent” medical examination physician. While not all medical examiners are biased, carriers will sometimes schedule so-called “independent” medical examinations, with physicians who are reputed to provide biased opinions in favor of insurance companies, in order to avoid medical and disability benefits to its insured workers. This is one of the ways in which disputes arise which need to be resolved through the hearing process, or in some circumstances, through a bad faith action.

Temporary Total Disability (TTD)

TTD means that you are temporarily, totally disabled or unable to work because of your injury. A physician has documented that the injured worker is unable to work, either because time is needed to diagnose the injury and the physician does not want to risk further injury, the injury needs time to heal, or any other reasoning in the physician’s opinion. During this stage, the industrial carrier should pay the totality of medical expenses related to the industrial injury that are provided by the approved physician.

In addition, it should pay 2/3 of lost wages, with checks coming in two-week intervals. The highest wage recognized by the Workers Compensation Act depends on the year you were injured. For 2009 injuries, the highest wage recognized by law is $3,600.00 per month, and therefore the maximum disability benefit payable is $2,400.00 per month. An insurance carrier may dispute a TTD status with the opinion from its own physician that the worker is capable of working. In that event a hearing may be necessary.

Temporary Partial Disability (TPD)

TPD means that you still need medical care, but a physician feels that you are able to return to the duties of your regular work, or perhaps modified or light duty. During this stage, the carrier continues to pay the totality of medical expenses from the approved physician, but now pays 2/3 of the difference between your established average monthly wage (AMW) and the wages you are “able to earn” within your medical restrictions. This is an issue that is litigated with increasing frequency. The worker will often contend that his employer does not have light duty available, and that he has looked for other light duty jobs without success, and therefore, is entitled to continuing full disability benefits. Carriers may respond that the worker could have found other light duty jobs, and the carrier will then reduce disability benefits, taking credit for wages it claims the worker was able to earn, even if no wages were earned. Denial of disability benefits is a tactic sometimes used to force desperate workers to settle for less than what is owed. Disability checks during this stage must be paid at least every 30 days.

Permanent Partial Disability (PPD)

PPD means that the case has closed from further active medical care, but that the worker has suffered a permanent disability as a result of the injury. Either the worker’s physician, or the carrier’s physician, has stated an opinion that the patient has received maximum benefit from medical treatment, and that further treatment will not provide any additional permanent improvement to the injury. Serious injuries may then be awarded a permanent disability through a permanent impairment rating.

Permanent impairments may or may not pay permanent disability benefits. There are two types of permanent disabilities, scheduled and unscheduled. A scheduled disability will pay a “scheduled” amount of money for the disability, without regard to the impact of that disability on your life or ability to work. An unscheduled disability will pay lifetime benefits, on a monthly basis, based on a loss of earning capacity (LEC). Generally, if a worker can return to date-of-injury wages, there is no LEC, and no disability benefit is paid. If the worker can only return to lesser wages, because of the injury, then a disability benefit based on 55% of the recognized loss is paid monthly. These are frequently disputed issues in Arizona workers’ compensation cases.

Change of Address

All clients must notify our office of a change in address or phone number immediately so that as required by law, it can be reported to the Industrial Commission of Arizona and the Insurance Carrier and any/all interested parties to the claim. It is also very important because as your attorney, we must have current information on file for you so that we may contact you regarding Depositions, Hearings, Medical Appointments and any information relating to your case.

Surveillance

Clients must be aware that Insurance Carriers can and will conduct surveillance on clients to confirm that the injuries and restrictions they are claiming are true. Clients must be aware that all of their actions may be videotaped and used as part of the court process.

Supportive Care

Serious injuries in Arizona may be awarded supportive care. This is generally a right to return to the physician several times a year to receive medications, or other minor treatments for flare-ups or exacerbations of the residual injury. Under supportive care, the claim remains closed, but treatment is authorized to the injured worker. In addition, once the claim has been accepted, if that medical condition is ever found to present something new, additional, or previously undiscovered from the time the claim was closed, the claim may be reopened for additional medical care to treat that condition. Reopening begins the process for payment of medical and disability ben

To speak with either myself or another attorney at the firm, please call and schedule your free consultation. You can reach us at 602-532-0700 or contact us through our website at Snow, Carpio, and Weekley.

What Compensation Am I Entitled To?

Workers' compensation pays limited benefits. Generally, any medical expense related to the injury must be covered. You are also entitled to a percentage of your lost wages for time away from work.

There are three stages to an accepted workers' compensation claim: temporary total disability (TTD), temporary partial disability (TPD), and permanent partial disability (PPD).

Temporary total disability should pay two-thirds of lost wages, with checks coming in two-week intervals. The highest wage recognized by the Workers Compensation Act depends on the year you were injured.

Under temporary partial disability, the carrier continues to pay the total medical expenses from the approved physician, but now pays 2/3 of the difference between your established average monthly wage and the wages you are able to earn within your medical restrictions. Temporary partial disability is paid while you are still receiving active medical care, but have been released to work with restrictions, often referred to as "light duty" work. If your employer cannot accommodate your restrictions, you will receive full compensation of 2/3 of your regular wage, but paid every 30 days.

Permanent partial disability means that the case has closed from further active medical care, but the worker has suffered a permanent disability as a result of the injury. Depending on the type of injury you have sustained, you may be entitled to either a one time lump sum payment to compensate you for your injuries, or you may receive a permanent monthly pension if you are unable to return to your regular work and have a "loss of earning capacity" as a result of your injuries.

For more information or to schedule a free consultation with an attorney, contact Snow, Carpio, and Weekley at 602-532-0700.

Are You Confused About Filing a Workers' Compensation Claim in Arizona?

You should never be reluctant to report an injury that you suffered while on the job. In fact, Arizona's Workers' Compensation Law requires that workers who sustain an on-the-job injury "forthwith report" their injury to their employer. "Forthwith" means that as soon as you realize you have an injury that may be related to your work, you must report it to a supervisor or manager immediately.

Arizona's "no fault" system means that it does not matter how or why you were seriously injured. No one can be blamed for your accident. Even if you placed yourself in harm's way during a work day and were hurt because of it, this aspect of your case is irrelevant under state law.

Still, you should report your work injury to your employer as soon as possible. Failure to "forthwith report" an on-the-job injury can result in the insurance company denying liability for your injuries.

Inform Your Employer of Your Serious Injury — Then Inform Snow, Carpio, and Weekley.

Another reason it is important to report your injury and file an Arizona workers' compensation claim as soon as possible: It generally takes about 30 days to receive an initial determination of the insurance carrier's acceptance or denial of a claim. Your claim may be filed directly with the Industrial Commission of Arizona, or your attending physician or hospital will do so. They are required to report any industrial accidents to our state's Industrial Commission.Once your serious injury has been reported, we can start the hard work of investigating the details of your accident and strive for the results you need.

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.

05/31/2011 - Russell Pearce Recall - Chad Snow and Randy Parraz Announce the Number of Petitions

05/31/2011 - Russell Pearce Recall - Randy Parraz Reading the Proclamation

Russell Pearce opponents file recall petitions

Snow, Carpio, and Weekley

Arizona Industrial Commission Annual Claims Seminar

The Industrial Commission of Arizona has announced their annual Claims Seminar to take place on August 11-12, 2011 at the Wigwam Resort.  The Claims Seminar is geared toward giving basic information on Arizona work injury claims to employers, claim representatives, medical professionals, attorneys, paralegals, and other providers in the workers compensation industry in Arizona. 

Registration is $125.00 per day for the two day seminar and must be received no later than August 5, 2011.  Questions about the seminar can be answered by calling (602) 542-1779 or online at http://www.ica.state.az.us/Events/CLAIMS_Seminar_2011.aspx

The first day of the seminar is usually dedicated to presentations by Industrial Commission employees on basic workers compensation topics such as claims filing and processing, average monthly wage, medical benefits, and so forth.  The second day is more geared towards attorneys and has a legislative and case law review of major changes in workers compensation law from the prior year. 

Chad Snow is a workers compensation lawyer with offices in Phoenix and Tucson.  He can be reached at (602) 532-0700 or (520) 647-9000 along with his associates at Snow, Carpio, and Weekley.

What benefits are available for a worker who is killed on the job in Arizona?

This entry deals with the saddest cases that we handle as worker’s compensation attorneys in Arizona, where a worker is killed on the job. An employee who dies as a result of an accident arising out of his employment or an occupational disease may have three different claims:

1. A claim for death compensation benefits for his or her survivors.
2. A claim for burial expenses.
3. A claim for medical expenses incurred before the employee’s death.

In cases for compensation benefits for survivors, surviving spouses, children, parents, or siblings may be eligible to receive a “death compensation benefit” which consists of a percentage of the employee’s average monthly wage at time of death. A surviving spouse is entitled to monthly benefits in an amount equal to 35% of the deceased worker’s average monthly wage. Those benefits, however, end upon the remarriage or death of the surviving spouse. For each surviving child, an additional benefit of 15% of the worker’s average monthly wage is added up to a maximum of 66 2/3% of the employee’s average monthly wage at time of death. Surviving children benefits end at age 18. In order to qualify for surviving spouse benefits, the surviving spouse must have been legally married to the deceased worker at the time of the injury. In cases where a surviving parent, brother, or sister was wholly or partially dependent on the injured worker at the time of death, they may also be entitled to survivor’s benefits in different amounts.

In claims for burial expenses, the employer and carrier usually pay out a lump sum of $5,000.00 to cover any reasonable burial expenses occurring as a result of the on-the-job death.

Because of the complexity of on-the-job death cases and the possibility that a claim against a third-party may result, survivors of a deceased worker should always consult with an experienced worker’s compensation attorney.

Back From Spain!!!





Madrid



Sevilla

O.K., I'm not going to lie - I'd much rather still be in Spain than here blogging about Arizona workers compensation.  As many of you know, I lived in Spain from 1990 to 1992 as a missionary for the LDS Church.  I've returned for vacations several times since and it's amazing how the country has changed. 

This time, we enjoyed a Real Madrid soccer game at the Bernabeu Stadium, one of the coolest things I've ever done.  We sat second row, I've got great pics of the players.  We also saw Los Miserables, Les Mis in Spanish.  We saw two flamenco shows, a bullfight, and all the sights of Sevilla and Madrid, two of the most beautiful cities in the world.  We rode Spain's high speed train, the AVE, twice at speeds up to 200 miles per hour.  Would be nice if we had something like that here in Arizona. 

Now I'm back.  Joe Arpaio is still corrupt and hopefully a little closer to being indicted.  Our recall group of Russell Pearce, Citizens for a Better Arizona, has collected even more signatures and will be dropping them off at the Secretary of State's office next week (more on that in a later post).  And I've got a pile of work on my desk.  I'll be back to blogging daily on various Arizona Workmans Comp topics. 

Chad T. Snow is an attorney at the Arizona law firm of Snow, Carpio, and Weekley, which has offices in Phoenix and Tucson.  He can be reached at (520) 647-9000, (602) 532-0700.

Happy Monday!

Attorney Snow will be back in the office on Wednesday and hopefully posting some new blogs for everybody to read by next Monday.

Until then, be safe, have a wonderful week and remember...the best compliment you can give is a referral!

Please remember Snow, Carpio, and Weekley the next time you know of somebody who may need assistance with their Workers' Compensation or Social Security Disability issues.

Thank you!

What can be included in my average monthly wage?

As we have discussed previously, any compensation that is paid to a worker injured on the job in Arizona is based on a percentage of that worker’s “average monthly wage” at the time of his or her industrial injury.  In previous blog posts, I have discussed how the average monthly wage is calculated.  This post will deal with what kinds of benefits, other than salary, can be included in the calculation of the average monthly wage. 

I had an interesting case today where a potential client was given a vehicle for his personal use, in addition to his salary.  The carrier calculated his average monthly wage using only his salary.  Because I consider the personal vehicle an additional item to which a monetary value can be attached, I am of the opinion that the value of that personal vehicle can be included in the calculation of this man’s average monthly wage.  Another very typical scenario is the example of where an apartment maintenance worker is given a free apartment in addition to his salary.  In those cases, it is very clear that the value of the rent of that apartment can be included in the calculation of the wage.  At the same time, however, if the employer continues to provide the additional benefit such as vehicle or housing after the industrial injury, the insurance carrier can take a credit for the cash value of that item as long as it continues to be provided by the employer. 

As I have also discussed previously, earnings from other jobs apart from the employer where the worker was injured, can also be included in the average monthly wage calculation.  These are called concurrent earnings.  In order to be considered concurrent earnings, those wages have to be earned for an employer who is covered under the worker’s compensation act. 

Because the average monthly wage dictates the amount of compensation that you will receive for the rest of your claim, it is very important that it be calculated correctly.  I always advise injured workers to seek the counsel of an experienced worker’s compensation attorney with any questions about their claims. Contact us at Snow, Carpio, and Weekley today.

How will working affect my permanent worker’s compensation benefits in Arizona?

When are permanent benefits not really permanent? When they are received as a result of an on-the-job injury in Arizona.  As I have discussed before, there are two different kinds of permanent injuries in Arizona workman’s compensation claims.  Scheduled injuries are those that involve a specific body part that is listed on the schedule of impairments found at A.R.S. Section 23-1044.  If an injured worker sustains a permanent injury only to that body part, once the condition is found to be medically stationary by the treating physician, a set number of payments are made by the insurance carrier to compensate the injured worker for the permanent damage to that body part.  Although this is called permanent compensation, that does not mean that the compensation will endure forever, but rather that it is to compensate the worker for the permanent effects of his or her injury.  While the worker is receiving these “scheduled” payments, he or she can work without limit and will still receive a check every month during this period set for in the statute. 

The other type of “permanent” benefits in Arizona worker’s compensation claims are known as unscheduled injuries.  As I have discussed in previous posts, this is compensation to compensate the injured worker for wages lost as a result of his or her industrial injury.  Once the worker’s condition is found to be medically stationary, the Industrial Commission makes a determination as to what work the injured worker can still perform in spite of his or her permanent restrictions.  If that amount is less than what he or she earned at the time of the injury, the insurance company begins to pay a monthly benefit.  The Commission’s Award specifically indicates that this benefit is to continue for such time as a loss of earning capacity exists or until the death of the worker. 

The question then becomes how does work activity affect this “permanent” benefit.  The answer is as long as your earnings are equal to or less than the amount that the Industrial Commission determined you are able to earn when your claim was closed, there will be no affect on the permanent benefits.  If your earnings begin to exceed the amount that was determined, the insurance carrier will likely request that the Commission reduce your permanent monthly benefit.  Carriers are entitled to send out an Annual Report of Income to an injured worker who is required to report his or her earnings during the previous 12 months.  If the carrier sees that you are earning a significantly higher amount, they will more than likely request that the Industrial Commission rearrange your benefits and pay less. 

Since there are many variations on these general rules, any questions regarding work after a claim is closed should be directed to an attorney who practices Arizona worker’s compensation law. Contact us today at Snow, Carpio, and Weekley.

Where in the world is Attorney Snow......???

If you guessed Spain, you're right!

Attorney Snow and his family are visiting Spain for the next 10 days. We wish him a safe trip and a relaxing, joyous vacation.

Until then, check out our Facebook page at: http://www.facebook.com/home.php#!/pages/Snow-and-Carpio-PLC/129899957064544, courtesy of Snow, Carpio, and Weekley.

http://www.cnn.com/2011/US/05/11/arizona.sheriff.investigation/

Snow, Carpio, and Weekley