Hearings at the Industrial Commission: Streamline and Simplify

     I have been attending hearings at the  Industrial Commission of since the late 1980's. I always recommend having attorney assistance during the pre hearing and hearing phases of a workers' compensation claim, but if you choose to represent yourself, here a few tips.

    The best, and briefest, advice that I can provide is to streamline and simplify whenever possible. You should always focus on the one or two most compelling items of evidence that support your position. I have always found that each cases has one or two " hooks," or critical details that can make a difference . 

    Second, remember that you are presenting your case to an audience , specifically the Administrative Law Judge.Make it interesting compelling and simple. Simplicity sells. Boring a Judge and opposing counsel with irrelevant details creates an environment where no one is listening to you. 


     Even with medical evidence and conflicts, evidence can be simplified. Look for crux of the dispute if there are differing medical opinions. Are the physical exam results different? Is there missing data or images? Is there a conflict in the history?
     
     It is easy to complicate things, and lawyers are notorious for complicating the simple. It is much harder, and much more effective, to provide a simple, concise presentation.

     Please feel free to contact me with any questions. I have been practicing exclusively Arizona Workers' Compensation Law since 1988. I am former ICA staff counsel and am a certified Specialist. You can see my reviews on www.avvo.com. Thank you.

Brian Weekley
brian@workinjuryaz.com
Snow, Carpio, and Weekley 

www.workinjuryaz.com

The Importance of Treating Doctors

I tell my clients that having a good doctor is one of the most important aspects of their workers' compensation case. Without the support of their treating physician the attorney and the client will have an uphill battle. The insurance carriers select the same and few doctors to do independent medical exams to close an injured workers case or limit the scope of their injury. An injured worker's doctor must be able to articulate in court why his opinions and treatment recommendations are reasonable and medically necessary. If the treating physician is not familiar with several aspects of the workers' compensation process or is not responsive to the injured workers' attorney, the injured worker will have difficulty obtaining the medical treatment being recommended.

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 

" Faking" work injuries.

In my 24 years of practice, I've represented employers, the Industrial Commission and injured workers. I think that I have a fairly balanced perspective when it comes to this industry.

In my experience, one of the most common misperceptions by injured workers, their families, employers and society in general is that injured workers are " faking " injuries. From my perspective, the ability and incentives to fake injuries are narrow margin.

First, the life of a claimant can be miserable. He or she can be considered a social pariah. Also, the benefits are not exactly rich. There is no pain and suffering, nor are damages paid to claimants. There are ONLY medical and compensation benefits.

For compensation, an injured worker receives  66 2/3% of his or her average monthly wage based on earnings prior to the injury. Period. He can be terminated while on workers' comp. His employer does not have to pay benefits during this time. He loses whatever job security he had before the injury. He is injured , unemployed, and usually uninsured. 

99% of the workers I have represented dislike being off work; it drives them and their families crazy. It reduces their self esteem and self worth. It increases boredom.  I think that all of us can relate that we would drive ourselves and those around us crazy if we were on a semi permanent vacation around the house. I have always relate the "idle hands " parable to my clients.

" Faking it" does not entitle one to benefits. Any time loss must be substantiated by a medical opinion. In other words, a physician must restrict the injured worker to a no, light, or full work status. Physicians now rely on diagnostic tests that did not exist 20 or 30 years ago, such as CT and MRI scans. These test allow physicians to obtain objective proof of injuries. Complaints are not enough. They must be substantiated, or benefits will usually be denied. 

It does not matter how badly one hurts, or complains; a claim is only as strong as its' underlying medical evidence. 

Finally, " faking it" requires a somewhat sophisticated and elaborate plan to fabricate an injury event and report that event accurately to layers of investigative and medical professionals. I do not think have ever seen a claimant successfully run this gauntlet . 

In summary, I encourage everyone to be open minded, examine claims on an individual basis and look at the objective medical evidence. A claim is like a puzzle where all of the pieces should fit together fairly well. Thanks.

BW

Snow, Carpio, and Weekley

Snow, Carpio, Weekley, PLC has a new toll-free number!

You can reach us at: 855-325-4781.

Our New Partner Brian Weekley

As you may have seen, the name of our firm has changed recently.  As of April 1st, the firm name is Snow, Carpio, and Weekley. We have been joined by one of the most respected Arizona workers compensation attorneys, Brian Weekley.  Brian has been practicing in the Work Comp field for over 22 years.  He started his career at the Industrial Commission of Arizona, and has spent the last 20+ years as a partner at one of our biggest competitors.    When Brian approached Alex Carpio and I about joining our firm, we were flattered.  Brian indicated that he wanted to join Snow & Carpio because of the dynamic way we approach work injury cases which is reflected in how quickly our firm has grown. Brian has a large caseload in the Kingman, Lake Havasu, and Bullhead City area where he has worked for over 20 years.  He is joined by his longtime paralegal, Krista Quinn.  Brian is a State Bar of Arizona Certified Specialist in Workers Compensation.  His addition brings to six the number of attorneys in the firm.  We are happy to have him on board!

Chad Snow is a workers compensation attorney in Phoenix, Arizona.  The firm has offices throughout Arizona, including in Tucson, Kingman, and Lake Havasu City.  They can be reached at (602) 532-0700, (520) 647-9000, or through their website at www.snowcarpio.com.

Look for Work While on Light Duty

I can't stress enough the importance of injured workers in Arizona looking for alternate work when they are released for light duty by their doctor.  Case law in Arizona states that an injured worker has an affirmative duty to mitigate his or her damages by looking for alternate work that they could do while on light duty.  Once you show that you have looked for work, the burden shifts to the carrier/employer to show that jobs exist within your restrictions for which you would be considered.  Many of my clients think that because their restrictions preclude them from doing their regular job, they don't have to look for other work.  Not true.  The reality is that no one is going to hire someone with an open workers comp claim - everybody knows that.  But unless you make a good faith effort to look for light work, the carrier is not obligated to pay you temporary compensation. 

Chad T. Snow is an Arizona workers compensation lawyer with offices in Phoenix, Tucson, and Lake Havasu City.  He can be reached through his firm's website at Snow, Carpio, and Weekley.

How to Get the Most Out of Your Free Consultation With Workers Compensation Attorney

Not many professions offer free work.  When is the last time you saw a doctor for 30 minutes for free?  What about an auto mechanic?  An accountant?  So take advantage of the fact that most attorneys are available for free consultations on your case, usually up to about 30 minutes.  Here's a few tips to make the most of this great opportunity.

1.  Come prepared.  I've met with dozens of potential clients who show up at their consultation without any of the documents regarding their claim.  If I know nothing about your work injury or claim status, I can't really tell you what I can do for you.  Bring all documents, including letters from the insurance carrier and Industrial Commission.  Try to have them organized - throwing them all into a plastic grocery bag doesn't count!

2.  Don't bring your children.  Don't get me wrong, I love kids.  Have five of them myself.  But it is difficult to concentrate on this very important matter if we are both being constantly distracted by a child.  Plus, kids find law offices boring.

3.  Make sure and disclose EVERYTHING about your case to the lawyer.  I don't know how many times I've been told negative information about a client or their case the day of their hearing.  I usually respond with "It would have nice to know that SIX MONTHS AGO!!!"  Remember that your lawyer is on your side.  The sooner we know negative information, the quicker we can deal with it. 

4.  Remember that it's free.  Many potential clients unfortunately think that attorneys are social service agencies that are obligated to provide legal services to everyone.  That is not the case.  We are private businesses.  We don't have to take every case.  Be grateful.  Many times I have taken a case that I would not have otherwise taken simply because the person was pleasant and grateful for the free advice. 

5.  Come with questions prepared.  After the attorney has given you their assessment of your case, ask any questions that have not been answered. 

Chad T. Snow is a lawyer with the law firm of Snow, Carpio, & Weekley who limits his practice to representation of injured workers before the Industrial Commission of Arizona.  He can be reached at (602) 532-0700, (520) 647-9000, or through visiting the firm's website.

PRESS RELEASE

Firm Partners Chad Snow and X. Alex Carpio of Snow and Carpio, PLC are pleased to announce that Brian Weekley, Attorney at Law has merged his practice with ours to create the new firm of Snow, Carpio, and Weekley, PLC.

Brian was born in Oak Ridge, Tennessee in 1960. Following graduation from high school Brian traveled through Europe then began college at California State University, Fullerton, when he obtained a Bachelor’s Degree in English Literature. Brian then moved to San Diego to attend and graduate from California Western School of Law. Brian began his legal career at the Industrial Commission of Arizona. He joined Taylor and Associates in 1990 and practices exclusively in the area of Worker’s Compensation. He became a Certified Specialist in 1998, and is recognized in Best Lawyers in America and Super Lawyers.

Snow, Carpio, and Weekley, PLC looks forward to continuing to provide the highest level of service to injured workers and those with disabilities throughout Arizona.

For more information regarding Snow, Carpio, and Weekley PLC, please contact our Phoenix office at 602-532-0700.

Job Retraining After an Arizona On the Job Accident

Many of our clients ask if their company or the insurance company has to pay for job retraining if they are unable to return to their job due to an industrial injury.  The short answer is:  no.  However, there are a few options for vocational rehabilitation following an Arizona work injury.  The first and most common is voc rehab through the Industrial Commission of Arizona's "Special Fund".  The Special Fund is funded by a surcharge on all workers comp premiums paid in the state.  One of its purposes is to pay for job retraining for those whose injuries result in permanent limitations that prevent them from returning to their date of injury job.  Typically, the Special Fund contracts with a Certified Rehabilitation Counselor to help the injured worker identify a field that they are interested in and help them develop a retraining program.  I have had many clients who take advantage of this great benefit and actually come out with higher wages than they had before their injury. 

There are other vocational rehab programs through the state and some local governments and private charities.  Unfortunately, these have been largely underfunded since the onset of the Recession and I don't hear much about them anymore.  For more information about Voc Rehab following an Arizona work injury, feel free to contact our office at Snow, Carpio, and Weekley.

Chad Snow is a workers compensation attorney with the Arizona firm of Snow & Carpio.  He can be reached at the Phoenix office at (602) 532-0700 or in Tucson at (520) 647-9000. 

AZ Work Comp Law that Needs to Change

Snow, Carpio, and Weekley have always been active at the legislature in helping protect the rights of injured workers from legislation that is unfavorable.  One such statute that I intend to challenge when the time is right is A.R.S. 23-1044(D).  The insurance industry slipped a change in this one by a couple of years ago.  It provides that if an Employer offers an injured worker a modified job, and the worker subsequently loses that job for "reasons that are unrelated to the industrial injury", the carrier can take a credit for what the worker would have earned but for their fault in losing the job.  The statute says that the Industrial Commission "may" use those wages to determine the injured worker's post-injury earning capacity.  I have now litigated several of these cases - luckily not one judge has found that the injured worker was at fault in losing their job.  Usually they were fired for some pretext so the Employer/Carrier could try and get out of paying permanent compensation.  However, that hasn't stopped the carriers from trying.

Another statute provides that an Employee has to accept a bona fide job offer for modified work from their employer and if they don't, the carrier can use the wages they would have earned to determine their earning capacity.  My problem with these statutes is that they force workers to work for companies that they may not want to work for, at the risk of losing their benefits.  I don't mean to be melodramatic, but it's a form of slavery or indentured servitude.   I believe we fought a civil war over that issue. 

I'm looking for just the right case to take to the Court of Appeals to overturn these statutes.  I can't wait to be the first attorney to make a 13th Amendment argument in an Arizona Work Comp claim...

Chad T. Snow is an attorney with the Arizona Workers Compensation firm of Snow, Carpio, and Weekley.

Do you want to be featured on our website?

Are you happy with Snow and Carpio, your attorneys and our staff?

If so, we are looking for clients who are willing to let us film you to put on our website, Facebook and YouTube Channel! It only takes a few minutes & can be done right here in our office! All you need to say is your first name, what makes you happy about having chosen Snow and Carpio and why you would refer us to others. That’s it!

If interested, please let us know so we can schedule a time to come in and be filmed!

When is the Best Time to Hire an Attorney in Arizona Work Comp Claim?

I've posted about this before, and I'll say it again - the best time to consult with an attorney if you've been seriously injured on the job in Arizona is AS SOON AS YOU CAN AFTER YOUR INJURY.  I have met with too many clients who wait until their claim is closed or even after the closure has gone final to contact an attorney and find out what their rights are.  I just met with a lady yesterday who came to us to see if we could reopen her claim and I didn't have the heart to tell her that she could be getting twice as much per month in permanent benefits if she had consulted an attorney. 

Remember that no matter how nice the claim representative from the insurance company is, they are in business to make money - which they do by paying you less.  Whether you contact Snow & Carpio or another workers compensation law firm, take advantage of the free consultation and find out your rights immediately after your injury. 

Chad T. Snow is an attorney in Phoenix, Arizona who limits his practice to representing workers who have been injured on the job.  He can be reached at (602) 532-0700, (520) 647-9000, or through the firm's website at Snow, Carpio, and Weekley.

FRIENDLY REMINDERS FOR INJURED WORKERS

FRIENDLY REMINDERS FOR INJURED WORKERS

Your doctor releases you to light duty work. You must go back to your employer where you were injured and see if they have light duty work available for you. If your employer does not have light duty work, you must look for light duty work within your work restrictions in good faith. Look for 3-4 jobs per month and keep a record of them. Most employers will not hire you, but the law requires you to look for work. Remember to ask your doctor each time what your work restrictions are, if any.

When you are seeing a doctor, don’t exaggerate your symptoms. For example, never say your pain is 10 out of 10, or that you never get out of bed. If you over-exaggerate your symptoms, the doctor is not likely to believe you. It is o.k. to say that you have good days and bad days, and that sometimes you are able to do more things than other times. This includes filling out questionnaires in doctors’ offices. Never indicate that your symptoms affect you to the most severe level possible. If they move you, pull you, touch you and it doesn’t hurt do not say it hurts, if it hurts then say it hurts. There is no need to exaggerate your symptoms. Simply be honest.

Be aware that occasionally insurance companies do surveillance of injured workers. You do not need to become paranoid and think that you are always being followed; just do not act one way in the doctor’s office and another way in public. If you tell the doctor you cannot do certain activities and you are caught doing them on surveillance, a judge will probably not believe you. Remember your work restrictions, if you do not know your work restrictions you will not know what you can or cannot do. Knowing your work restrictions is essential to your case.

Keep our office informed. If you move, tell us. If your phone is disconnected, let us know how we can get a hold of you. If AHCCS or your private healthcare insurance will pay for your surgery because the workers’ compensation carrier is failing to authorize, under Arizona law we must provide the insurance carrier adequate notice in writing of your upcoming surgery for them to be possibly liable for it in the future. Do not have a surgery without telling us first. If you see a new doctor or are treating with another doctor please tell us. We must be aware of all the doctors that are treating you. We can represent you best when we know everything about your case.

Your attorney is always willing to meet with you to discuss your case. However, just like with your doctor, you need to make an appointment first. We are usually busy throughout the day going to court, depositions, and meeting other clients. Make sure you let our staff know the purpose of your appointment so the attorney knows what your meeting will be about.

Be careful what information you put on public social media sites. Insurance carriers have become very skilled at getting negative information about injured workers from social media sites such as Facebook, Twitter, LinkedIn, or MySpace. Be aware that information you put on public social media sites can be used against you in court even if your profile is set to private.

You can reach any of our staff anytime at their e-mail address, which is (the person’s first name) @snowcarpio.com. For example, Mr. Snow’s e-mail is chad@snowcarpio.com, Mr. Carpio’s is alex@snowcarpio.com – the same for everyone in the firm. This is often the best way to get a hold of us and get a quick response. You can also see all of our services at Snow, Carpio, and Weekley. However, if it is something complicated or you do not have access to email please call us to set up an appointment.

Disturbing Talk About What Your Doctor Doesn't Know

I have an app on my I-phone to a website called ted.com that has interesting speakers lecturing about a variety of timely topics. Listened to one this morning that is jaw-dropping in its revelations about what doctors don't know about the medications they prescribe and incredibly damning of the concept of "evidence based medicine" that many insurance carriers would like to make the hallmark of the Arizona Workers Compensation system.  A link to the talk is below. 

What Doctors Don't Know About the Drugs They Prescribe

Goldacre is a physician/researcher who talks about how negative trials of medicines or treatments don't get published in peer-reviewed medical journals because they aren't as sexy.  As a result, doctors don't have all the information they need about medications and this can result in the deaths of hundreds of thousands of patients a year due to uninformed doctors. 

The part that caught my attention as a workers compensation attorney was what Goldacre described as the "cancer at the core of evidence based medicine".  EBM is a system of medical care in which individual doctors' choices are severely limited to pre-determined treatment based on "evidence" of research that has been done on that specific diagnosis.  Goldacre exposes the severe fundamental flaws in relying on the "literature" in making treatment decisions. 

Chad T. Snow is an attorney practicing in Phoenix and Tucson Arizona who represents workers injured on the job.  He can be reached through his firm's website: Snow, Carpio, and Weekley.

What is a Functional Capacity Evaluation (Arizona Work Injury Claims)

In many Arizona workers compensation cases, the injured workers permanent restrictions dictate how much compensation is received for their injuries.  Determining permanent work restrictions is an art, and restrictions can vary significantly between doctors.  For example, John Beghin, a local spine surgeon who is the darling of the insurance carriers, believes that anyone who has had spine surgery is magically healed and rarely recommends permanent work restrictions.  To say that a 60 year old man with a three level spine fusion can return to work as a roofer is a little ridiculous, but I digress...

One manner that some doctors prefer to use to determine work restrictions is a Functional Capacity Evaluation.  Most of these evaluations are done by physical or occupational therapists and involve several hours, often over two or three days, simulating work-like activities and measuring the injured workers tolerance of those activities.  It seems to be a more objective measure of work capability than the doctor pulling restrictions out of....  (My partner, Alex Carpio, once had a client who weighed 98 pounds that the insurance carrier's doctor said could life up to 100 pounds on a continuous basis in spite of her back surgery!) 

Chad Snow is a workers compensation attorney at the firm of Snow & Carpio.  With offices in Phoenix and Tucson Arizona, he can be reached at (602) 532-0700, (520) 647-9000, or on the firm's website at Snow, Carpio, and Weekley.

What Pharmacy to Use When Injured at Work in Arizona

A trend I have seen in the last couple of years in Arizona workers compensation claims is carriers trying to steer injured workers to use pharmacies with whom they have special discount arrangements.  Many times, the carrier will send out a "prescription card" or some other method of making the injured worker believe that they are required to use that pharmacy or network.  As with many things carriers try to do, this is not the case!

Just like selecting a treating doctor, an injured worker in Arizona has the right to choose his or her own pharmacy.  Many doctors self-dispense medications which is a great convenience for the injured worker.  We have also had a very good experience and highly recommend Injured Workers Pharmacy(IWP), which is a very reputable nationwide pharmacy specializing in servicing those injured on the job.  What I like about IWP is that they fill the prescription immediately and deal with the insurance company later, which ensures that our clients get their medications as soon as possible. 

Any questions about medical treatment or pharmacy needs in an Arizona work injury claim can be directed to our firm through our website at Snow, Carpio, and Weekley.

Bad Faith in Arizona Work Comp Claims

I have written previously about "bad faith" as it pertains to an Arizona workers compensation claim.  Insurance carriers have a duty to process a claim in "good faith", which means that they cannot take any action which is arbitrary, capricious, or does not have a reasonable basis in fact.  For example, a carrier cannot just deny a claim because they want to - they have to have a legitimate reason for doing so.  A carrier that is found to have committed bad faith in a work injury claim in Arizona can be forced to pay a penalty of $500 or 25% of the amount in issue, whichever is greater. 

Some of the more common examples of bad faith in Arizona work comp claims are carriers failing to pay compensation in a timely manner, carriers refusing to approve recommended medical care, and claim representatives having improper communications with a represented applicant.  The Industrial Commission's Claims Division, under the new leadership of attorney Melinda Poppe, seems to be taking legitimate complaints of bad faith and unfair claims processing seriously. 

Chad Snow is a workers comp attorney in Arizona, with offices in Phoenix and Tucson. He can be reached at the firm's website at Snow, Carpio, and Weekley.

Notices of Average Monthly Wage

One of the most important things we do as workers compensation attorneys is make sure that the injured worker's "average monthly wage" (AMW) has been set correctly.  This is important because all compensation that an injured worker receives in their claim is based on the AMW. There are various methods of calculating the AMW.  The presumptive method is by taking the injured worker's earnings during the 30 days prior to the injury.  If the 30 days prior does not accurately reflect what the worker earned during an average month, the Industrial Commission can "expand the wage base" - taking a longer period of time and coming to a monthly average.  For example, if a construction worker had fewer hours in the month before his injury due to bad weather, it may be favorable to take an average of the monthly earnings during the prior 12 months. 

The problem in calculating the Average Monthly Wage is that the current process is almost entirely in the hands of the insurance carrier, which has an obvious interest in setting the wage at the lowest possible amount.  The carrier is supposed to issue a form 108 within 30 days of the injury, which sets the AMW.   The ICA then can either adopt this recommended wage or set a different wage, although they rarely vary from what the carrier has recommended. 

There are rumors that the Commission's Claims Division is going to start seeking input from the injured worker prior to determining the wage.  This should result in a fairer and more accurate calculation of the worker's true earnings. 

Chad T. Snow is a workers compensation attorney in Phoenix and Tucson, Arizona.  He can be reached at (602) 532-0700, (520) 647-9000, or on the firm's website at Snow, Carpio, and Weekley. 

Maximum Average Monthly Wage for 2012

The Industrial Commission of Arizona has calculated the maximum average monthly wage for work injuries occurring in calendar year 2013 at $4,185.78.  This is a 74% increase in the maximum wage since 2007.  In 2006 a group of attorneys who represent injured workers in Arizona lobbied at the state legislature for an increase in the maximum wage, which had been stuck at $2,400 for several years and was among the lowest in the country.  The wage has been increased to $3,000 in 2008, $3,600 in 2009, with indexed increases every year since.  This is a boon for higher wage workers with permanently disabling injuries, who previously were only compensated a small fraction of their lost earning capacity.

Snow, Carpio, and Weekley