Social Security Disability and Early Onset of Alzheimer's Disease

Social Security Disability and Early Onset of Alzheimer's Disease

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

There are an estimated 5.4 million in United States living with Alzheimer's disease.  The disease is associated with old age but there are a unfortunate few who are affected by the disease before the age of 65 during their prime working years.  Those who are affected by the disease before age 65 are diagnosed with Early Onset of Alzheimer's Disease.  The disease is terminal and it cannot be stopped or cured.  While at first a person may be able to work the disease will eventually take over affecting a person’s work life as well as their personal lives.

Normally, to apply for social security disability, you must got through a rigorous application process and must prove that you are unable to work.  Proving that you are unable to work involves getting doctors notes stating what your work restrictions are, hearings, and what can often be a vicious back and forth with the Social Security Administration.  Fortunately for those with Early Onset of Alzheimer's Disease there is a compassionate allowances list.  This is a list of serious, terminal, and rare diseases created by the Social Security Administration and it includes Early Onset of Alzheimer's Disease.  If you have a disease on the list of compassionate allowances you automatically qualify for social security benefits by law.  For a complete list of the compassionate allowances check out the social security website.  https://www.ssa.gov/compassionateallowances/conditions.htm

If you or a love one have Early Onset of Alzheimer's Disease and yet are still being denied benefits by the Social Security Administration or if you have any condition on the compassionate allowances list and would like help with your application, please contact Snow, Carpio, and Weekley for a free consultation.

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Full and Final Settlements

Full and Final Settlements

By Partner/Attorney Brian Weekley

Snow, Carpio & Weekley

On May 8, 2017, Governor Ducey signed Senate Bill 1322, which will become effective November 1, 2017.

SB 1322 allows full and final settlements of workers' compensation claims. This is the first time that such settlements will be possible in Arizona. SB 1332 also provides for travel expenses for injured workers for medical treatment located over 25 miles from their homes.

In the period prior to 10-31-17, injured workers have had limited ability to globally resolve their claims. Any settlement of supportive care has been subject to future reopening by the injured worker.

From 11-1-17 forward, the parties will be able to resolve both the medical and indemnity portions of their claims " once and for all." 

However, these full and final settlements will have serious ramifications for the uninformed injured worker. Valuation of indemnity and future medical is critical, as will be the all important role that Medicare plays in resolved claims.

We urge any injured workers or their families to contact to contact us to discuss ramifications and strategies under this fast approaching changed landscape.

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Facet Mediated Pain & the ODG....

Facet Mediated Pain & the ODG in AZ Workers' Compensation

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley

           

More and more, spine specialists are pointing to the facet joints as possible pain generators in low back injuries.  The facet joints are the joints in your spine that make your back flexible and able to bend and twist.  Like any other joint in the body, they are susceptible to injury.  

The problem with diagnosing facet joint injury and pain is that there is no diagnostic test that specifically without doubt demonstrates a facet injury.  So doctors are left to other methods of diagnosis such as the physical examination and subjective complaints of the patient.  A physical exam where pain is greater in lumbar spine flexion and rotation than extension can be indicative of an injury to the facet joints. An additional diagnostic tool that physicians can use for facet pain is a medial branch block.  This is where the nerve that provides feeling to the joint is blocked with an anesthetic.  If this gives temporary pain relief greater than 70%, the facet joint can be pointed to as the pain generator.  

A growing list of pain management doctors treat facet mediated pain with a procedure called a radio frequency ablation, which “burns” the nerves that innervate the facet joint.  This procedure can provide relief for about 18-24 months until it needs to be repeated.  The Official Disability Guidelines, which are evidence based guidelines for chronic pain used at the Industrial Commission, are generally supportive of this method of diagnosis and treatment of facet joint injury and pain. 

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Worker’s Comp Cases are like Fingerprints.....

Worker’s Comp Cases are like Fingerprints, no two are the same…

By Attorney Erica Gonzalez-Melendez

Snow, Carpio & Weekley

Occasionally I get the question from a client:  Why did their neighbor’s cousin who barely had a back injury recover triple figures in his case but they who lost a finger get so much less in permanent compensation? 

First of all, every state in the country has a different workers compensation system with different rules for compensating injuries. But even in Arizona no two cases are the same, the cases will vary depending upon the body part which is injured, the job duties prior to the injury, the work restrictions that a client is left with at the end of the injury, the amount of impairment a doctor gives, and the average monthly wage of the worker.   

Even if two different workers have the exact same injury, losing a hand for example, the compensation would end up depending on their work duties before the injury and how much they were paid at the time of injury (the average monthly wage).  With two workers with the same type of back injury, the final compensation will depend upon the permanent restrictions given by a doctor, the education level of the worker, work history, average monthly wage at the time of injury and the job duties at the time of the injury. 

It’s important to think critically about the work that anyone is doing on your behalf, usually your worker’s compensation attorney is working hard to get the maximum compensation in your case.  Obviously if you have a question about why your case is so different from another injured worker, you should ask your attorney. 

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

Average Monthly Wage - Get it Right!

Average Monthly Wage – Get it Right!

By Attorney Erica Gonzalez-Melendez

Snow Carpio & Weekley

One of the most important aspects of your case is average monthly wage. All of your compensation while your case is open and active depends upon your average monthly wage.  At the close of your case, if you get a permanent impairment, the amount of compensation you are paid for the impairment depends upon your average monthly wage.

Your average monthly wage is the amount of money you earned in the 30 days prior to your injury. The goal of setting the average monthly wage is to get a picture of the amount you were earning at the time of your injury.  If you have more than one job, the earnings from the second job would count as well.*  Sometimes, the amount you earned in the 30 days prior to your injury isn’t an accurate reflection of your earnings on your date of injury.  There are lots of reasons that this may happen: maybe you worked less hours or had an unusually high amount of earnings in the days prior to your injury; you could’ve started the job two weeks prior to your injury and therefore there are not 30 days to count prior to the injury.  If it’s the case that you had an unusually high or low amount of earnings in the month prior to the injury, then the Industrial Commission will look at an “expanded wage base”, meaning, looking at earnings over a year or six months, whichever is more appropriate.  If you very recently started your job, they may look at the earnings of other employees at your company who have a similar job to yours.  If you recently had a change in your pay rate, the commission will look at your pay from the day of your raise forward.

As you can see, the average monthly wage is a crucial part of your case and it’s important to get it right.  If you have questions about how your wage was set, you should consult with a worker’s compensation attorney.  Both sides have 90 days to protest a Notice of Average Monthly wage set by the Commission so it’s important to consult with an attorney early in your case regarding this issue.
*The earnings from the second job would count if the second employer is covered by the Worker’s Compensation Act.


For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at www.workinjuryaz.com. We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

CHOICE OF DOCTORS

CHOICE OF DOCTORS

By Chad Snow, Founding Partner

WE HAVE WRITTEN SO MANY BLOGS ON THIS TOPIC BECAUSE IT IS ONE OF THE MOST IMPORTANT ASPECTS OF WORK INJURY CASES IN ARIZONA.  

THE INJURED WORKER’S TREATING DOCTOR IS OFTEN THE MOST IMPORTANT PART OF A SUCCESSFUL CLAIM.  THE TREATING DOCTOR DECIDES WHAT TREATMENT IS NEEDED FOR THE INJURY, WHEN THE WORKER CAN RETURN TO MODIFIED/LIGHT DUTY, WHAT PERMANENT DISABILITY THE WORKER GETS, AND THE AMOUNT OF SUPPORTIVE MEDICAL CARE THAT IS NEEDED IN THE FUTURE.  

AT SNOW, CARPIO, & WEEKLEY, WE HAVE A NETWORK OF TREATING DOCTORS IN ALL SPECIALTIES WHO HAVE VAST EXPERIENCE IN INDUSTRIAL MEDICINE.  IF YOU HAVE A DOCTOR WHO DOES NOT TREAT MANY INJURED WORKERS, HE OR SHE MAY NOT BE AWARE OF WHAT NEEDS TO BE DONE TO HAVE A SUCCESSFUL WORKERS COMP CLAIM.  

EVEN WORSE, IF YOU HAVE A DOCTOR WHO GETS A LOT OF THEIR BUSINESS FROM INSURANCE COMPANIES, THEY MAY BE MORE INTERESTED IN DOING WHAT IS IN THE CARRIER’S INTEREST THAN YOURS.  

CHECK WITH US ANYTIME YOU HAVE A QUESTION ABOUT YOUR TREATING DOCTOR.  REMEMBER THAT IN MOST CASES THE INJURED WORKER CAN CHOOSE THEIR OWN DOCTOR, SO YOU’RE NOT REQUIRED TO TREAT WITH WHO THE INSURANCE COMPANY OR YOUR EMPLOYER SENDS YOU TO.  

COURT OF APPEALS

COURT OF APPEALS

By Chad Snow, Founding Partner

CLIENTS OFTEN ASK WHAT WE CAN DO IF THEY LOSE AT THEIR INDUSTRIAL COMMISSION HEARING.  THE ANSWER MOST OF THE TIME IS “NOT MUCH”.  

HOWEVER, THERE ARE APPEAL RIGHTS FOLLOWING AN UNFAVORABLE DECISION AT THE ICA.  THE FIRST STEP IS TO FILE A “REQUEST FOR REVIEW” WITH THE JUDGE THAT MADE THE UNFAVORABLE DECISION.  THIS IS A RATHER INFORMAL APPEAL THAT SHOULD POINT OUT TO THE JUDGE WHY YOU THINK HIS OR HER DECISION IS INCORRECT.  THESE ARE GENERALLY UNSUCCESSFUL – THINK ABOUT IT – HOW LIKELY IS THE JUDGE TO ADMIT THAT THEY WERE WRONG?  

THE JUDGE THEN ISSUES A DECISION ON REVIEW EITHER OVERTURNING OR UPHOLDING THEIR ORIGINAL DECISION.  THE INJURED WORKER THEN HAS 30 DAYS TO FILE A PETITION FOR SPECIAL ACTION WITH THE ARIZONA COURT OF APPEALS.  

THIS STARTS THE PROCESS OF THE APPEAL.  

LATER, THE PERSON APPEALING THE DECISION HAS TO FILE A LEGAL BRIEF WITH THE COURT EXPLAINING THE FLAWS IN THE ALJ’S DECISION.  THIS ARGUMENT SHOULD BE LIMITED TO LEGAL ERRORS IN THE DECISION SUCH AS THE CONSIDERATION OF EVIDENCE OR MISAPPLICATION OF THE LAW.  FACTUAL ISSUES SUCH AS WHICH DOCTOR’S OPINION IS MORE LIKELY CORRECT ARE ALMOST ALWAYS UPHELD BY THE COURT OF APPEALS. 

I’VE HAD SEVERAL CASES AT THE COURT OF APPEALS OVER THE YEARS.  THEY ARE VERY TIME CONSUMING AND DIFFICULT TO PURSUE.  HOWEVER, THE COURT WILL OVERTURN CASES WHERE OBVIOUS LEGAL ERRORS OR ABUSES OF DISCRETION HAVE OCCURRED.  

ANYONE CONSIDERING AN APPEAL TO THE COURT OF APPEALS SHOULD CONSULT WITH AN ATTORNEY WHO HANDLES EXCLUSIVELY ARIZONA WORKERS COMPENSATION CASES.  

DON’T BLAME YOUR LAWYER

DON’T BLAME YOUR LAWYER

By Chad Snow, Founding Partner

HAVING A WORK INJURY IS FRUSTRATING.  WITHOUT ANY WARNING THE INJURED WORKER’S INCOME IS CUT OFF, HE OR SHE IS IN PAIN, AND THEIR ENTIRE FAMILY AND SOCIAL LIFE IS DISRUPTED, SOMETIMES PERMANENTLY.  LET ME START OFF BY SAYING THAT IT IS ALWAYS A GOOD IDEA TO CONSULT WITH AN ATTORNEY WHEN YOU’VE HAD A WORK INJURY.  AS I’VE DISCUSSED IN OTHER BLOGS, SOMETIMES YOU NEED TO HIRE AN ATTORNEY AND SOMETIMES YOU DON’T – BUT IT’S ALWAYS A GOOD IDEA TO KNOW YOUR RIGHTS RIGHT FROM THE BEGINNING.  WHEN WE ACCEPT REPRESENTATION IN A CLAIM, IT’S BECAUSE WE THINK WE CAN MAKE THE CASE BETTER THAN IT WOULD BE IF THE INJURED WORKER PROCEEDED WITHOUT REPRESENTATION.  

BUT SOME PEOPLE THINK THAT JUST BECAUSE THEY HAVE AN ATTORNEY, EVERYTHING WILL GO SMOOTH IN THEIR CLAIM.  UNFORTUNATELY, THAT IS NOT ALWAYS THE CASE.  REMEMBER THAT WE ARE DEALING WITH AN INSURANCE COMPANY WHOSE MAIN GOAL IS TO MAKE A PROFIT – WHICH THEY DO BY LIMITING THE AMOUNTS PAID TO YOU IN COMPENSATION AND MEDICAL BENEFITS.  WE ARE ALSO DEALING WITH A GOVERNMENT AGENCY, THE INDUSTRIAL COMMISSION OF ARIZONA, THAT DOES NOT ALWAYS ACT WITH THE URGENCY WE WISH THEY WOULD.  AS ATTORNEYS, WE ARE OFTEN LIMITED IN WHAT WE CAN DO TO FORCE THE INSURANCE CARRIER TO PAY THE BENEFITS THE WORKER IS ENTITLED TO WHEN WE WANT THEM.  WE DO EVERYTHING IN OUR POWER TO MAKE SURE OUR CLIENTS SUFFER THE LEAST AMOUNT OF PAIN AND ANXIETY POSSIBLE.  BUT SOMETIMES, THINGS ARE OUT OF OUR CONTROL.  REMEMBER THAT YOUR LAWYER IS ON YOUR SIDE AND HAS AN INTEREST IN KEEPING YOU HAPPY AND GETTING YOUR BENEFITS PAID.  

When Will My Worker’s Compensation Case End?

When Will My Worker’s Compensation Case End?  

This is a common question I get from my clients.  This can actually be a difficult question to answer.  Some worker’s compensation cases are quick.  For example, a person cuts part of their body while working, gets the necessary medical treatment and heals quickly with minimal scarring and no damage to the underlying nerves and tissues.  This person’s worker’s compensation case would “end” quickly, basically as soon as a doctor declared the person stationary with respect to the industrial injury.  

However, what about a person who has a knee injury involving a torn meniscus, the person gets the surgery for the torn meniscus and the case is closed.  A few years later the person returns to his doctor with new symptoms to the same area and the doctor says the person now needs a total knee replacement.  The person would then have the right to file a Petition to Reopen the claim and if it is denied by the insurance carrier, he or she can take the issue to an Administrative Law Judge at the Industrial Commission.  

The point at which  a worker’s compensation case ends really depends on the injured worker and their healing process, each case is different. In fact, the injured worker has a lifelong right to file a Petition to Reopen their industrial claim therefore technically the worker’s compensation case doesn’t end until death.

The Labor Market Expert

The Labor Market Expert

By Nicholas Wearne, Associate Attorney

In addition to you and your attorney, there will be a hearing monitor, the judge, and a labor market expert present at your hearing for social security disability benefits.  This blog post focuses on the labor market expert and his/her part in the hearing process.

In order to qualify for social security benefits you must show that you cannot do your past work, nor can you do any other “relevant work.”  What is relevant work?  Well that depends on your age, what kind of work you did in the past, among other things.  The labor market expert is a job specialist who gives an opinion about what a person can and cannot do as far as “relevant work”. 

What usually happens is the judge will ask a number of hypothetical questions, for example, “If I believe the claimant is limited to 10lbs lifting and cannot sit for more than one hour, is there any relevant work that he/she can do?” The vocational will then give an expert opinion about “relevant work”.  The judges normally do not decide whether a person will be approved during the hearing thus they will get ask a broad range of hypothetical questions. 

The Long Hearing Process

The Long Hearing Process

By Erica Melendez, Associate Attorney

A truly frustrating fact for injured workers is the length of time for the hearing process.  A case goes through the hearing process when the injured worker and the insurance carrier cannot agree as to the worker’s right to a certain benefit.  Issues include whether the person was even injured at work from the outset of the case, whether the person is entitled to additional medical treatment and whether the person is entitled to a permanent benefit.  One worker’s compensation case can go through the hearing process several times for different issues.  The hearing process is necessary is so that an Administrative Law Judge can hear evidence and determine the injured worker’s right to a certain benefit based on the Judge’s determination of the credibility of the lay witnesses.  If there is a conflict between doctors, (for example, your doctor believes that you need a certain surgery but the insurance company’s doctor says you do not need any further treatment) the Administrative Law Judge decides which doctor’s opinion is more probably correct. 

Given the number of cases in the system, the fact that many cases will have to go through the hearing process multiple times, plus the time necessary for parties to prepare the case for hearing, the time for a case to even get to a Judge for the initial hearing is currently approximately 2 ½  months.  At the initial hearing before the Judge, the injured worker and any lay witnesses (non-medical) will testify.  Next, the Judge determines if medical testimony is necessary and will set “further hearings” for the doctors to testify.  The doctors are set to testify by telephone and they are set according to the doctor’s schedule, the Judge’s calendar and the calendar of any attorneys assigned to the case.  The number of calendars which have to be coordinated makes setting the further hearings difficult and often means there is a months-long wait for the doctors to testify.  Although Judge’s staff work their hardest to get the hearings scheduled quickly and efficiently, the wait can be excruciating for an injured worker waiting for benefits.  After the hearings are completed, the Judge has 30 days to make a decision in the case. 

The wait for hearings and decisions in industrial cases can be frustrating but it is a necessary part of the process and it’s important to know that  the individuals involved in the hearing process try to make the wait as short as possible. 

What does it mean when my Workers' Compensation case is made stationary?

What does it mean when my Workers' Compensation 

case is made stationary?  

By Erica Melendez, Associate Attorney

When a doctor finds that your medical condition has stabilized to the point that no further medical treatment will improve your condition, or that you have reached “MMI- maximum medical improvement”,  your worker’s compensation case can be determined to be stationary.  This does not mean that the doctor is saying you are completely healed, it just means that your healing has stabilized and the doctor isn’t recommending any further treatment that will help your condition get better.  At this point the doctor should also give their opinion as to whether you have permanent impairment to your body, if you have permanent work restrictions and whether you need “supportive care”.  

“Supportive Care” is treatment to keep your medical condition at the same point that it is when the doctor stated you were at maximum medical improvement.  If your case is stationary the carrier will send out a notice that says you are stationary and will send out notices that award you the payment for the permanent disability and award the supportive care.

Your treating doctor can give the opinion that you have reached maximum medical improvement and give opinions as to the impairment and supportive care.  If the carrier accepts the treating doctor’s recommendations that is ideal.  However at times the carrier will decide to send you to an Independent Medical Examination (IME) with another doctor and that doctor will indicate whether he or she agrees with the determination that you are stationary and will give opinions as to how much permanent impairment and supportive care you should be awarded.  If this is different from your treating doctor’s opinion and you wish to appeal the determination of the carrier, you can Request a Hearing with the Industrial Commission.  

If the carrier closes the case using an IME to determine you have reached MMI, you can show the IME to your treating doctor, if your doctor does not agree with the determination that you have reached MMI, you can request a hearing with the Industrial Commission.  An Administrative Law Judge will then determine which doctor they find to be more probably correct and will determine if your case should be made stationary or not.  If your case is found to be stationary based on the opinion of a doctor that is not your treating doctor, always take the opportunity to request that your treating doctor review the other doctor’s opinion and find out if your doctor agrees with the opinions as to whether you require additional treatment, how much permanent impairment you are granted and your supportive care award.

For more information about Snow, Carpio & Weekley, visit www.workinjuryaz.com

What to expect at a Social Security Disability Hearing

What to expect at a Social Security Disability Hearing

By Nicholas Wearne, Associate Attorney

Social Security Disability hearings can be intimidating so this is a general idea of what to expect. 

First off, I tell people to arrive about an hour early.  You never know what traffic is going to be like.  Make sure you have researched the address the night before and you know where the hearing office is located.  I always meet with my clients in the half hour before hearing just to review their case and go over things one last time.

When you arrive you will check in with security and if you have an attorney you will wait for them.  About 5-10 minutes before the hearing begins a hearing monitor will come check on you to make sure you are there and to make sure everything is ready for the judge.  They generally leave and will come back once the judge is ready. 

Expect your hearing to last about an hour.  In the hearing room it will you, your attorney if you have one, the judge, the hearing monitor, and usually there will be a vocational expert.  The judge and your attorney will ask you a series of questions to get an idea of why you think you are disabled, to get an idea of what you do during the day, and to figure out what your past work was like.  The judge will them ask some hypothetical questions to the vocational expert.  Generally, you will not receive a decision from the judge at that time but he will conclude the hearing and send you his decision a month or so later in the mail.  On occasion the judge will end the hearing by letting you know what he or she is going to do.

If you have a hearing scheduled and you are nervous about how things are going to play out, contact our office for a free consultation.

How Long Does it Take To Get Benefits and What Resources are Available Until I Get a Decision?

How Long Does it Take To Get Benefits 

and What Resources are Available Until I Get a Decision?

By Nicholas Wearne, Associate Attorney

The answer to this question is one you are probably not going to like. As I have explained in prior blogs there are three levels of application.  The first two take about 4-6 months.  The third level of application is a hearing and it takes 1-1.5 years to get a hearing after you have gone through the first two steps.  Generally speaking, I tell people it takes about two years.  The process is an extremely long one and perhaps one of the most difficult things about it is you cannot be working while you wait.  You can work a little bit but consult with an attorney before trying to do so.  Your ability to work is very limited and if you work to much you will start your application period over again.

So what are you supposed to do while you wait?  How are you supposed to survive?  This the question I do not enjoy answering.  As far as healthcare goes, you can get on AHCCCS assuming that our new president elect does not try to scale back AHCCCS funding once he is in office.  As far as food goes, you can apply for and get on food stamps.  As far as shelter goes, this is often the hardest one.  Most of my clients are living with family and friends.  Some are in homeless shelters.  If you are in the beginning stages of applying for social security disability I would have some very open talks with your family members about what will happen if you are unable to keep the lights on or pay the mortgage as it likely it may come to that.  If you have a spouse that works, that is great. 

Finally, do not apply for unemployment though it may be tempting.  When you apply for unemployment you are certifying that you are able and looking for a job.  Social Security will hold this against you.  If you are applying for Social Security Disability and have questions about how to prepare for the long haul ahead, call Snow Carpio and Weekley or visit us on our website at www.workinjuryaz.com.

WORKERS’ COMPENSATION PAYMENTS

WORKERS’ COMPENSATION PAYMENTS

By Dennis R. Kurth, Associate Attorney

Workers' Compensation Specialist

A workers’ compensation claimant in Arizona should know exactly how and when indemnity benefits are paid under the statute.  First, on any case where time lost benefits are indicated, the carrier must get wage/payroll information from the employer and set the average monthly wage.

The average monthly wage is the basis for the payment of all indemnity benefits.  The AMW is presumed to be the claimant’s gross earnings in the thirty days before the injury unless there is some good reason to use an expanded wage base.  The claimant should understand that the AMW is not the amount of compensation payable monthly but that the maximum payment is always just two-thirds of the AMW during the period of the total disability, temporary or permanent.

Compensation is not paid for the first seven days after the injury unless the claimant’s disability continues for one week beyond the first seven days.  Compensation payments must be in the form of “…a negotiable instrument, payable immediately upon demand.” (a check)  (A.R.S. §23-1062(D)).  Electronic direct deposits into claimants’ accounts and prepaid debit card accounts are allowed at the claimant’s election.

Compensation for total temporary disability, where the claimant is on a no-work status, is payable every fourteen days under the statute.  The amount of each payment is determined by breaking compensation down to a daily rate by multiplying the average monthly wage by the factor .021918.  That figure is multiplied by fourteen to arrive at the amount of each check. If there are dependents, the claimant receives an additional $25.00 per month or .8219 dollars per day.  Some carriers, like The Hartford, pay temporary total compensation weekly but that is not required.

Compensation for temporary partial disability, where the claimant has been released to light work and may have some earnings below the average monthly wage, is calculated much differently.  First, the average monthly wage is divided by 30.416 to get the daily rate.  Then the daily rate is multiplied by the number of days in the period, usually thirty.  Next, any actual earnings are subtracted and finally the net figure is multiplied by .667 to arrive at the amount owed to the claimant.  If the claimant has no earnings to report, compensation would be the same as the daily rate for temporary total compensation.

Permanent compensation benefits are always paid once a month and vary depending on whether the claimant has a scheduled or unscheduled award.  Scheduled benefits are those set forth in the statute for permanent injuries to the limbs including fingers, toes, etc. as well as the eyes and ears (hearing).  Benefits for scheduled injuries are paid for a certain and limited number of months set forth in the statute and based on the numerical disability rating.  The monthly scheduled payments are paid at the rate of 50% of the average monthly wage if the claimant can return to regular work and 75% of the average monthly wage if the claimant cannot.

Compensation for permanent unscheduled injuries (affecting the back, shoulders or trunk of the body) is set by the Industrial Commission based upon an analysis of the claimant’s earning capacity.  A claimant who cannot return to regular work but can do a lighter, lower-paying job, receives 55% of the difference between his/her post-injury earning capacity and average monthly wage.  A person who is totally disabled, however, receives 66.7% of his/her average monthly wage.

What are my chances of getting approved if I am under 50 years old?

What are my chances of getting approved 

if I am under 50 years old?

By Nicholas Wearne, Associate Attorney

As you age the level of disability that you must prove relaxes.  In other words as you get older getting Social Security Benefits gets easier.  The catch is this relaxation of the rules does not start till you are 50 years old.  

While there are certain exceptions, if you are under 50 years of age you generally must prove that you are not even able to do sedentary (sit down) work.  You have to prove that there are no jobs in the national economy that you could do.   We generally prove this by sending a form for your doctor to fill out.  If you cannot sit more than 4 hours a day, it suggests you cannot do a sit down job.  If you are going to have to miss work more than 4 days a month due to health problems, it suggests you cannot do a sit down job.  If you are going to be off task more than 25% of the time due to pain/symptoms, then it suggests that you cannot do a sit down job.

Proving you cannot do a sit down job is difficult.  You have to have a doctor who supports you and a judge who believes both you and the doctor.  While it may be difficult for people 50- to apply, I would always recommend applying for social security disability if you have the requisite support of your doctor. If you don’t have the requisite support I would still apply but then focus on getting that support from your doctor. 

HERNIAS IN ARIZONA WORKERS’ COMPENSATION

HERNIAS IN ARIZONA WORKERS’ COMPENSATION

By Dennis R. Kurth, Associate Attorney

Workers' Compensation Specialist

Hernias, a very common type of industrial injury, are treated differently from all other injuries in the Arizona workers’ compensation law.  They are divided into two categories under the statute depending on whether they are purely traumatically-caused or whether a pre-existing abdominal wall weakness contributes to the hernia.  (A.R.S. §23-1043(1) and (2)). 

“Real traumatic” hernias or “class one” hernias, are those caused by a direct injury to the abdominal wall, whether by a strain from lifting, external force or otherwise, which allows the viscera to protrude and where there is no proof of a pre-existing weakness such as a prior hernia or congenital defect.

These hernias are treated like almost all other injuries and the claimant’s burden of proof is to establish only that the work activity contributed to the development of the hernia.  Temporary compensation benefits for real traumatic hernias are the same as for all other injuries with no monthly limit on indemnity benefits.

“Class two” hernias encompass all other hernias and are the result of a combination of a work-related strain and a pre-existing abdominal weakness.  Apparently, the drafters of this legislation felt that such hernias would be much more ubiquitous than real traumatic ones and because not solely the responsibility of industry, deserving of only limited compensation.

The drafters also added some additional requirements, beyond the normal burden of proof, to these type of hernias: (1) the immediate cause must be a “sudden effort or severe strain or blow”; (2) that the descent of the hernia immediately followed the cause; (3) that the cause was accompanied by severe pain; and, (4) that the pain was so severe that the claimant reported it immediately to one or more persons.  (A.R.S. §23-1043(2)(A-D)).

Fortunately for claimants, because the workers’ compensation law must be liberally construed, it is not necessary to establish every requirement to the letter and case law under the statute has softened the requirements considerably.  Immediate descent means anything from several minutes to several days.  Severe pain, a very subjective standard, can mean some pain or even no pain.  Immediate communication to one or more people means within a reasonable time.  All of these matters of proof are questions of fact for the ALJ.  The distinction between the two classes of hernia is a medical question to be addressed by the doctors.

If all of the statutory criteria for class two hernias are met and medical testimony establishes a causal relationship to the work activity or strain, compensation is payable for only two months, which is usually sufficient to cover the normal recovery time after surgery. The two month compensation limit, however, does not apply if the treatment/surgery leads to complications which delay recovery and/or necessitates further medical treatment.  An example of such complication could be an infected mesh which requires further surgery.

Workers’ compensation carriers tend to treat all hernias as class two hernias without regard to the details.  Usually a claimant will have to successfully litigate the issue to have a compensable class one hernia.  Such injured claimant should consult a worker compensation specialist to see if their injury can be classed as a real traumatic hernia rather than a class two hernia.

The Treating Physician Rule

The Treating Physician Rule

By Nicholas Wearne, Associate Attorney

Code of Federal Regulations Section 404.1527(2)(c)(1) states that the Social Security Administration will give more weight to a source that has examined and treated you than one that has not examined and treated you.

When you apply for Social Security Disability your file will be reviewed by many different people including doctors.  The doctors who review your file will likely take a stance or make a determination regarding what your work restrictions should and should not be.  While your initial application can be denied for many different reasons, a reason that I see often is that the reviewing doctors felt my clients could return back to a level of work where there are not disabled.

How is this possible when the law states that your treating doctor is supposed to be given more weight than a doctor that has not examined you?  It usually happens because peoples treating doctors have not given an opinion on what they are and are not able to do as far as work.  If your treating doctor has not given you specific work restrictions then there is no opinion to refute the one given by the reviewing doctors with social security disability. 

When I sign social security applicants up for representation one of the first things I do is get an opinion on file from the treating doctor regarding what they are and are not able to do as far as work.  They may still get denied at the initial levels but will have a solid legal argument that they are disabled.  I refer to Section 404.1527 in almost every hearing I do.  If you believe yourself to be disabled and would like help in getting an opinion regarding work restrictions from your treating doctor, contact Snow Carpio and Weekley for a free consultation.

MEDICAL RELEASES

MEDICAL RELEASES

By Dennis R. Kurth, Associate Attorney

Certified Workers' Compensation Specialist

Medical releases can be problematic in Arizona workers’ compensation cases.  The Arizona statute says that the medical records of a physician treating an injured worker are not privileged communications that can be withheld from “interested parties” (insurance carriers) who need the information “…for a proper understanding of the case and a determination of the rights involved.”  Consequently, a claimant must sign a medical release when requested by the carrier.  (A.R.S. §23-908(D)). There is often tension, however, between the carrier’s right to get medical records and the claimant’s right to privacy and to assert their doctor/patient privilege.

There is also a category of medical records unrelated to a claimant’s industrial injury that are considered discoverable by the carriers and their lawyers.  Those would be records of treatment for a condition similar to the industrial injury in the past.  For example, if a claimant who sustains a low back injury at work had a prior low back surgery and pain management treatment, the carrier would certainly be entitled to those records “…for a proper understanding of the case.”

Problems arise, however, when a claimant, usually one unrepresented and entering into litigation at the Industrial Commission, is presented with a medical release from the carrier or its lawyers, requiring them to give the carrier and lawyer access to any and all medical records from any doctor who ever treated the claimant for anything.

These unlimited medical releases would give the carriers and their lawyers access to sensitive, personal records of mental health, sexual dysfunction or infectious disease treatment without regard to the nature of the claimant’s industrial injury.  There is always the potential that such sensitive, personal records might be used by the carrier’s attorney to embarrass the claimant at the hearing.

These open-ended medical releases usually arrive with a packet of discovery paperwork like interrogatories and a deposition notice as well as correspondence from the carrier’s lawyer threatening the claimant that the release cannot be changed or modified according to HIPPA but can only be signed and returned.  This, even though HIPPA doesn’t apply to workers’ compensation medical releases.

Clearly, carriers are not entitled to such a broad unlimited, medical release under the law.  The workers’ compensation statute also states that medical records pertaining to conditions unrelated to the industrial injury “shall remain privileged.”  (A.R.S. §23-908(A)).  A claimant who objects to signing an unlimited medical release would be on solid legal ground in doing so.

I am disabled and have no money, how does my attorney get paid?

I am disabled and have no money, 

how does my attorney get paid?

By Nicholas Wearne, Associate Attorney

If you are applying for disability it means that you are unable to work.  Savings are likely running out and most of my clients are living with friends and family.  The question often comes during initial consultations “How am I supposed to pay you?” 

There are lots of rules about how attorneys get paid for helping Social Security Disability applicants but the answer to how I get paid is simple.  If I am successful in helping a client qualify for Social Security Disability benefits, there will be money owed to them back to around the time they had to stop working.  I charge 25% of the back pay or $6,000 dollars from the back pay, whichever is less.  Once I have been paid from the back pay, I do not charge anything more.  Also, if a client does not win then I do not charge.

Just to illustrate, if a client gets $10,000 in back benefits I would charge 25% ($2500).  If a client gets $100,000 in back benefits I would charge $6,000 dollars.  If we do not win, I do not charge and consultations are always free whether we take the case or not.