PREPARING THE CLAIMANT’S DOCTOR TO TESTIFY

PREPARING THE CLAIMANT’S DOCTOR TO TESTIFY

By Dennis R. Kurth, Attorney

One of the most important duties of the workers’ compensation claimant’s lawyer is preparing the claimant’s doctor to testify before the ALJ at the Industrial Commission.  Most cases litigated before the Commission require expert medical testimony to meet the claimant’s burden of proof that an injury occurred, that special statutory causation requirements are met or that further treatment is necessary.  Dealing with the many and various physicians who might be involved in workers’ compensation cases requires some considerable people skills in addition to familiarity with the statute and case law.

In workers’ compensation litigation, cases are rarely litigated to a conclusion in one hearing.  Because of concerns related to the budget (the Commission pays the doctor to testify) lay witness and claimant testimony is always scheduled first and then medical testimony in follow-up hearings with the claimant’s doctor going first.  It is absolutely critical that the claimant’s doctor be carefully prepared to testify if the case is to be successful.

Defense attorneys on workers’ compensation cases do not have such concerns with their medical witnesses, practically all of whom were hand-picked by the carrier to do “independent” medical exams and to defend their opinions in court.  They are generally always well-paid and well-prepared to do so.

It is far different and far more difficult for claimant lawyers who most often litigate the case with the doctor who came with the claimant.

There is no substitute for a personal meeting with the claimants’ doctor once his or her testimony is scheduled but not too far in advance that the doctor doesn’t remember what you discussed with him or or her. It is essential to make sure that the physician has all of the records in evidence, including the IME report.  No doctor wants to be surprised and embarrassed on cross-exam because of records they didn’t have.

If there are special statutory requirements as with heart, mental or hernia cases, go over the statute with the doctor and give them a copy of the statutory language.  Explain how their testimony will help meet your burden of proof.   Reassure them that the workers’ comp law does not require proof that an anatomic change occurred if a pre-existing condition is aggravated by work activity, medical treatment is required and disability from work results.  Tell them the weaknesses of your case.  Explain the hearing process so that they feel comfortable testifying.  The cost of such expert witness preparation varies from doctor to doctor but is well worth it.  It is almost always well-appreciated by the doctor.

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.

ANATOMIC CHANGE NOT NECESSARY TO PROVE INJURY

ANATOMIC CHANGE NOT NECESSARY TO PROVE INJURY

By Dennis R. Kurth, Attorney

The Arizona workers’ compensation statute requires proof of an “injury” by “accident” within the course and scope of employment to establish a compensable claim. (See A.R.S. §23-1021(A)).  Case law has liberalized the term “accident” to encompass any work activity, even repetitive work activity, that gradually causes an injury over a period of time.  There does not need to be a single, specific traumatic event that causes an acute medical condition immediately in order to prove that an injury occurred.

Likewise, “injury” has been defined by the appellate courts as any work-related condition that causes the need for medical treatment and disability from work.  In cases of pre-existing conditions aggravated by work activity, whether industrial in origin or not, a claimant’s proof must include evidence that the industrial injury acted upon a pre-existing condition to produce a “further injurious result” according to long-standing case law.  (See Professional Furniture Service v. Industrial Commission, 133 Ariz. 206, 650 P.2d 508 (App. 1982)).

The philosophical underpinning of this interpretation of the workers’ compensation statute is the old tort principle that the tortfeasor takes the victim as he or she is with whatever pre-existing conditions or infirmities they may have.  A tortfeasor, it is said, is not entitled to a completely healthy victim and must be responsible for the aggravation of any pre-existing condition his victim carries. In worker’s compensation, the same liability pertains to the employer.

In workers’ compensation, furthermore, case law has established that a claimant need not prove that the work activity or trauma caused an organic or anatomic change in the pre-existing condition in order to establish that an injury occurred.  It is simply enough that the work activity caused the need for medical treatment and disability from work. (See Industrial Indemnity Co.  v. Industrial Commission, 152 Ariz. 195, 731 P.2d 90 (App. 1986) and Mandex v. Industrial Commission, 151 Ariz. 567. 729 P.2d 921 (App. 1986)).  This rule however, liberal as it may seem, is often problematic in its implementation.

First, it is counterintuitive to treating physicians and surgeons in workers’ compensation cases.  They are trained to look for objective evidence of acute traumatic injury on clinical examination or imaging studies and if they don’t find it are reluctant to find causation or even an “injury” at all.  They, of course, are looking for “medical causation” but ALJ’s are looking for “legal causation” instead.

In litigation before the Industrial Commission this rule comes up frequently.  IME doctors very commonly ignore it and won’t find causation without proof of anatomic or organic change in the claimant’s pre-existing condition.  It is extremely rare to see an IME examiner find causation without proof of organic or anatomic change.

Suspicion is that many valid claims get denied or closed improperly because of this misunderstanding of the law.  A large percentage of aggrieved claimants do not seek legal representation and either go it alone in front of the ALJ or just don’t protest the closure or denial of the case at all.

It is incumbent on workers’ compensation claimant attorneys to educate the attending physician or surgeon about the law, including that proof of an organic or anatomic change is not necessary.  Most are not aware of the rule and genuinely want to be effective witnesses before the ALJs.  It can also change their testimony in favor of the injured claimant in many situations.

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.

Equitable Apportionment

“Equitable Apportionment” of Workers’ Compensation Lien

Based Upon Employer’s Comparative Fault

By Dennis R. Kurth, Attorney

In a recent and very significant case, the Arizona Court of Appeals has established the right of an injured worker who sues negligent third parties for causing his injury and whose recovery is reduced by his employer’s comparative fault, to a trial to determine his overall damages and the percentage of his employer’s fault in order to reduce the workers’ compensation carrier’s lien.  The case is Twin City Fire Insurance Company v. Leija, (Ct. App. Div. One, 8/31/17).

The Arizona Workers’ Compensation law, which provides the exclusive remedy for an injured worker against his or her own employer or co-employee, has long allowed the worker to sue negligent third-parties for his/her injuries.  The statute also grants the employer’s workers’ compensation carrier a lien to the full extent of compensation and medical benefits paid and a credit against future benefits, medical or indemnity, to the extent that the third-party recovery exceeds the amount paid. (See A.R.S. §12-1023(A) and (D)).

For many years, a claimant in a third-party case could not force the workers’ compensation carrier to compromise its lien in order to settle a disputed liability case against a third-party.  Nor could a claimant maintain a bad faith case against a workers’ compensation carrier for refusing to compromise its lien.  (See Boy v. Fremont (1987)).   Many a third-party claim had to be abandoned or not pursued because of this rigid interpretation of the lien statute.

When Arizona followed joint and several liability in negligence cases, and plaintiffs could collect their full damages from any negligent party, this strict interpretation of carriers’ lien rights did not work an injustice to the injured worker.  But when joint and several liability gave way to the adoption of comparative negligence in the early nineties, that strict interpretation began to cause serious problems in third-party cases and manifestly unfair results to injured workers.

In Aitken v. Industrial Commission (1995), the Arizona Supreme Court began to recognize the need for an “equitable adjustment” to the workers’ compensation carriers’ lien rights in cases where the assessment of comparative fault to the injured workers’ employer reduced the overall recovery.

Without offering explicit guidance in how to implement an “equitable adjustment” the Aitken Court generally stated that the future credit should apply only to the extent that compensation benefits paid exceed the negligent employers’ proportionate share of the total damages awarded by a jury in the trial of the third-party action.

Two subsequent Supreme Court cases, however, failed to add clarification to the Aitken rule in the context of sham “summary trials” between the injured workers and third-party defendants to arbitrarily set the negligent employer’s percentage of fault in proceedings to which neither the employers or their carriers were invited to participate.

In the first, Grijalva v. State Compensation Fund (1996), the superior court found the employer 100 percent at fault and its carrier not entitled to any lien in a case where several third-party defendants paid substantial sums to settle! The Supreme Court rejected that judgment as an “artful contrivance” to circumvent the carriers’ lien rights. 

In the second case, Stout v. State Compensation Fund (2002), the injured worker and third-party defendant entered a side agreement not disclosed to the workers’ compensation carrier and a brief sham hearing before the superior court to set the employer’s fault and reduce its carrier’s lien rights significantly.  That was also rejected by the Supreme Court because the claimant did not give “candid and timely notice” to the workers’ compensation carrier of their side agreement and summary trial.  Because the summary trial was not a “true contest” to set the employer’s fault, the Supreme Court found the workers’ compensation carrier entitled to its full lien.

In Twin City Fire Insurance Co. v. Leija, the Supreme Court commented favorably on the Leija’s bona fides in not trying to reduce the workers’ compensation carrier’s lien based on a sham proceeding contrived to increase the employer’s fault without giving it due process, a chance to prove that the claimant’s damages and the employer’s fault were limited.

For the first time since Aitken, the Supreme Court found the injured worker entitled to “equitable apportionment” of the workers’ compensation carrier’s lien where the parties had settled without ever going to trial and did not conspire to artificially set the employer’s fault.  For these reasons, the injured worker was entitled to a trial in superior court, with the employer and its workers’ compensation carrier entitled to participate fully and present evidence on their own behalf, in order to set the percentage of employer fault and to reduce its carrier’s lien accordingly.

Although, in the same opinion, the Supreme Court refused to overrule Boy v. Fremont and impose a duty on workers’ compensation carriers to reduce their liens, the opinion has gone a very long way toward achieving fairness for claimants in these third-party situations and is very welcome in the workers’ compensation and personal injury communities

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.

Hernias - Figueroa vs. The Industrial Commission of Arizona

Hernias  

Figueroa vs. The Industrial Commission of Arizona

By Nicholas Wearne, Attorney

Arizona has a statue designated to hernias and the statute is misunderstood by many defense attorneys, applicant attorneys, as well as several judges.  The law separates hernias into two different types.  Class 1 hernias, and Class 2 hernias.  Class 2 hernias are only covered in certain circumstances and the most you can get by way of monthly benefits is 2 months of compensation for a Class 2 hernia.

Most defense attorneys will tell you all hernias are Class 2 unless the hernia is the result of a stabbing or puncture wound.  They will expect you to jump though all the hoops that come along with Class 2 hernias.  There is a Arizona case referenced above that explains how the law should actually be interpreted.  All hernias are to be considered Class 1 unless the defense attorney and carrier can prove that there was a birth defect or preexisting weakness in the abdomen.  Class 1 hernias do not have all the stipulations that Class 2 hernias have.  There are no limits on how long you can receive monthly payments and not hoops to jump though.

Hernias injuries are unfortunately almost always denied due to carrier’s and defense attorney’s misunderstanding of the law.  If you have experienced a hernia injury and your claim is being denied, contact our office 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.

WHAT IS THE DIFFERENCE BETWEEN PERSONAL INJURY AND WORK INJURY?

WHAT IS THE DIFFERENCE BETWEEN PERSONAL INJURY AND WORK INJURY?  

By Founding Attorney/Partner Chad Snow

Snow, Carpio & Weekley

Many people do not realize that there is a huge difference between personal injury law and work injury law.

Personal Injury is a tort claim filed against a third party who has caused damage or injury to you due to their negligence.

Work Injury law covers workers who are injured in the course and scope of their employment regardless of who is at fault.

In personal injury cases, the injured party must prove their losses due to the negligent injury, and can receive different types of damages, including pain and suffering, loss of consortium, lost wages, and loss of enjoyment.

Workers injured on the job are limited to compensation for time lost from work and 100% of their medical bills.  There is no compensation for pain and suffering in a work injury case.

Personal injury claims are filed against the insurance company and, if not settled, a lawsuit is filed in justice court or in superior court.  Work injury claims are filed at the industrial commission of Arizona and all disputes are heard in special courts at the ICA.

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.

DO I HAVE TO SETTLE MY CLAIM OR DOES THE INSURANCE COMPANY HAVE TO SETTLE?

DO I HAVE TO SETTLE MY CLAIM OR DOES THE INSURANCE COMPANY HAVE TO SETTLE? 

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley 

Many clients simply want to put the matter of their work injury behind them and get on with their life.  However, we cannot force an insurance company to settle a claim.

Insurance companies only settle a claim if they think they will pay less in the long run by giving the injured worker a lump sum of money now.  Likewise, an insurance company can’t force an injured worker to accept a settlement that the worker doesn’t feel is in his or her long term best interest.

All settlements of any issue in a work injury claim in Arizona must be reduced to writing in what is called a “compromise and settlement agreement”, must contain specific language, and must be approved by an administrative law judge from the industrial commission of Arizona.

If you have questions about settling a claim or seeing if an offer made to you is fair, you should definitely consult with an experienced Arizona work injury lawyer like those at Snow, Carpio, & Weekley.  In my experience, engaging an attorney usually results in a settlement at least double what the carrier would be willing to pay an unrepresented applicant.


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.

WHAT IF MY EMPLOYER DOESN’T HAVE WORKERS COMPENSATION INSURANCE WHEN I GET INJURED?

WHAT IF MY EMPLOYER DOESN’T HAVE WORKERS COMPENSATION INSURANCE WHEN I GET INJURED? 

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley

Arizona law requires all employers to carry a policy of workers compensation insurance to cover any employees who are injured on the job.  In some instances, employers fail to comply with this law and their workers’ pay the price.

Luckily, the framers of the Arizona workers compensation act foresaw this unfortunate circumstance and created the special fund division – no insurance section at the industrial commission.  The Special Fund division is funded by surtax on all work comp premiums paid in the state and is a division of the ICA.

When a worker is injured while in the employ of an employer who fails to carry work comp coverage, the no insurance section acts as if they were the insurance company, pays the claim if appropriate (compensation and medical benefits), and then pursues the employer for reimbursement of the costs of the claim, plus a penalty for not having carried insurance.

Unfortunately, the special fund division is not subject to many of the same claims processing requirements that private insurance companies are, so injured workers receiving benefits through them often have to wait much longer to get paid or get medical treatment authorized and don’t have some of the same remedies available as those covered by a private carrier.

If your employer didn’t carry work comp coverage at the time of your injury, call the workers compensation attorneys at Snow, Carpio, & Weekley, and we can help you file a claim through the special fund division – no insurance section.

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.

WHAT IF I HAVE A PRE-EXISTING CONDITION THAT IS RE-INJURED IN MY WORK INJURY?

WHAT IF I HAVE A PRE-EXISTING CONDITION THAT IS RE-INJURED IN MY WORK INJURY?  

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley

As we all get older, our bodies break down and suffer degenerative changes.  Many people get regular treatment for chronic conditions, especially of the spine and joints, for years before their work injury. Then an unfortunate injury occurs to that same body part, turning that occasional chronic pain into a disabling, acute injury.  Insurance carriers always try to prove that all of the injured worker’s problems are due to the pre-existing condition.

However, many times we are successful in proving that the work injury caused either a temporary or a permanent aggravation of the pre-existing condition.  a temporary aggravation is one that eventually returns back to the baseline condition as it was before the injury.

A permanent aggravation is an injury that causes the pre-existing condition to be permanently worsened and causes a permanent reduction in function to the injured body part.  This is proven through medical testimony of a treating or examining physician who reviews your prior medical records and other testing done after the injury, and gives an opinion as to the extent to which your pre-existing condition was aggravated by your work injury.


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.

THE ATTORNEYS AT SNOW, CARPIO, & WEEKLEY; WHAT MAKES US SO DAMN SPECIAL?

THE ATTORNEYS AT SNOW, CARPIO, & WEEKLEY 

WHAT MAKES US SO DAMN SPECIAL?  

By Founding Partner/Attorney Chad Snow

Snow, Carpio & Weekley

What sets the attorneys at Snow, Carpio, & Weekley apart from the dozens of other attorneys who represent injured workers in Arizona?  First, it is our backgrounds.  All of the attorneys in our firm come from working class backgrounds and understand and appreciate hard working people who just want to be treated fairly.  Two of us were roofers before becoming attorneys, two worked in other areas of construction, two were school teachers, and one lived in other countries while his father worked for an international mining company. 

Another special thing about our attorneys is that we fight for people’s rights outside of the courtroom as well as inside.  two of our attorneys were the chairman and general counsel of the historic 2011 recall of then Senate President Russell Pearce – the first time in us history that a sitting legislative leader was removed from office by recall.  Our firm stood up to then Maricopa County Sheriff Joe Arpaio when he was abusing immigrants and jailing his political opponents.  We were vocal opponents of now disbarred County Attorney Andrew Thomas when he was similarly abusing his power.  We continue to lobby at the legislature and have been instrumental at changing many laws favorable to those injured on the job. 

One of our attorneys is the past chairperson of Chicanos Por La Causa, one of the nation’s largest advocacy groups for Latinos and immigrants.  Another of our attorneys sits on the board of the catholic diocese of Tucson.  Another wrote the legal specialization test for many years for the state bar of Arizona for attorneys who wanted to become certified specialists in Arizona workers compensation law.  Five of our attorneys speak fluent Spanish.  Two are the children of immigrants.  All of us have lived in Arizona almost our entire lives.  Two of us served as church missionaries in other countries, dedicating two years of our lives to serving others.  Two were partners at our largest competitor and left to join our firm because they saw how we fought for and treated our clients.  All of us have families and understand the impact a work injury can have on someone who is taken out of work for a long period of time. 

If you are shopping for an attorney for your Arizona work injury, you can’t do any better than the lawyers at Snow, Carpio, & Weekley!!!

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.

TRACKING INDUSTRY ABUSES INDEPENDENT CONTRACTOR STATUS

TRACKING INDUSTRY ABUSES

 INDEPENDENT CONTRACTOR STATUS

By Attorney Dennis Kurth

Snow, Carpio & Weekley

The distinction between “employee” and “independent contractor” is crucial in workers’ compensation law.  Employees are covered by state-mandated, employer-provided workers’ compensation insurance but independent contractors are not.

There has long been tension between employers and workers’ compensation claimants over who is an independent contractor and who is an employee when workers are injured and need medical treatment and compensation for time lost from work.

The IRS has well-established rules for determining who is an independent contractor for tax purposes and, while those rules form a starting point for analyzing workers’ compensation issues regarding independent contractor status, most states’ workers’ compensation laws go further.  Workers’ compensation statutes are, of course, remedial in nature and designed to make industry shoulder the burden of caring for injured workers so that taxpayers do not.

Under common law rules of statutory construction of remedial legislation, state boards and appellate courts must liberally construe the term “employee” in order to find coverage for injured workers.  In Arizona, case law has focused on the question of whether the injured claimant was doing work that is an integral part of the employer’s business in determining whether the employer has the “right to control” the worker which is the main feature of employee rather than independent contractor status.  If a worker is doing such work rather than simply providing a service ancillary to the employer’s business, he/she is most likely an employee, not an independent contractor.

For many years, the trucking industry has been fertile loam for employer abuse of independent contractor status.  In order to avoid federal tax liability for FICA contributions as well as workers’ compensation insurance for drivers, the industry has devised all manner of subterfuge to make it appear that truckdrivers, almost all of whom are providing a service integral to the trucking companies’ business, are independent contractors rather than employees.

Recently, a USA Today investigation report blew the lid off a major independent contractor scam in the ports of Los Angeles where truckers haul freight from the ports to warehouses and rail lines for distribution to all of the major retailers around the country.  Reporters found that port trucking companies have engaged in the practice of forcing truckers, many of whom are immigrants who don’t speak or read English, to sign contracts to lease their trucks and pay all expenses related to their purchase, maintenance and operation often leaving the driver with no net earnings despite working far more than forty hours a week. Reporters also discovered that grossly overworking the drivers was leading to driving accidents and serious injuries not covered by workers’ compensation.

Drivers complained that if they refused to work continuous shifts without rest, they would be let go, leases terminated and the truck re-leased to a new driver with all their equity in the truck gone.  Consequently, they felt they had no choice but to accept the leases and work the long hours.

Fortunately, according to the USA Today report, drivers are winning practically all of these cases that go before the California Department of Industrial Relations.  The “labor commission” is ruling consistently that the drivers are employees not independent contractors.  Judging from employer responses to the reporters, however, they are not remorseful and it appears that this systemic abuse of independent contractor status might take much longer to stamp out.

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.

NEW WALMART EMPLOYEE DELIVERY PROGRAM EXPANDS WORKERS’ COMPENSATION LIABILITY

NEW WALMART EMPLOYEE DELIVERY PROGRAM

EXPANDS WORKERS’ COMPENSATION LIABILITY

By Attorney Dennis Kurth

Snow, Carpio & Weekley

According to the Washington Post, Walmart is thinking of using its fixed-site employees to deliver packages to customers on their way home after work.  The program, being tested in a couple of states presently, is a new tactic in its battle with Amazon for retail dominance.

The program is voluntary but Walmart intends to pay such employees extra, even overtime pay if necessary. Walmart sees the program as a way to cut costs as local delivery is the most expensive part of the fulfillment process.

Walmart needs to reassess this program with their risk management people.  Although it reflects the rise of the “Uber-style gig economy”, according to the Post, it also creates additional workers’ compensation liability for the company if the delivery results in an accident and injury to the employee making the delivery and especially if it causes an injury to an innocent third-party.

Workers’ compensation-covered injuries must “arise out of” and “in the course and scope of” employment under any states’ statute.  The workers’ compensation law was never intended to cover injuries going to or coming from work.  Until an employee arrives at work or home, his/her risk of injury while traveling to or from work is the same as the general publics’.

There are some well-known exceptions to the “going and coming” rule.  One statutory exception in Arizona is for police officers and firefighters.  They are covered for workers’ compensation if injured or killed while traveling directly to or from work as long as they are not engaged in criminal activity.
Other exceptions to the going and coming rule have been made by case law and provide workers’ compensation coverage for travel-related injuries where the employer pays for the employee’s transportation or provides a company vehicle.  An injury to an employee driving an employer-provided conveyance would clearly be covered even if incurred on the way to or from work. Also, injuries to local traveling employees using their own vehicles would be covered except when they deviate from the scope of employment by making a personal side trip.

 Another category of exceptions to the going and coming rule is for employees hurt on “dual purpose” trips or “special errands” for the employer while on their way to or from work. Coverage for such injures would pertain if the “special errand” was necessary for the employer as opposed to simply elective or convenient.  In other words, the delivery employee would be covered by workers’ compensation insurance only if the delivery/errand was important enough to the employer to require some other employee to do it had the volunteer not.

Walmart’s plan would seem to fit the “special errand” requirements since such deliveries by the “volunteers” would seem to be necessary one way or the other.  By paying the volunteer employee for making these after hour deliveries, however, Walmart is adding another going and coming rule exception to the mix which surely makes them liable for workers’ compensation coverage for any delivery-related injury to the employee.

Before Walmart’s executives get credit for devising a new way to save costs on their deliveries, there should be some serious consideration of the significant increase in workers’ compensation liability that this delivery program may entail.  Unless they plan to give extra driver training and screening to their participating employees, it might be a good idea to put this program on hold.  Not only could the employee be injured seriously in an accident on the road but a negligent delivery could cause an accident to another party that would subject the company to significant civil liability not circumscribed by workers’ compensation limits.

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.

VOLUNTEERS

VOLUNTEERS

By Attorney Dennis Kurth

Snow, Carpio & Weekley

Volunteers are generally not “employees” and, therefore, are not covered by the workers’ compensation law if they are injured on the job.  There are, however, statutory exceptions to the rule for volunteer fireman and policemen, DPS reserves, sheriff’s posse members, voc rehab clients of DES, national or State guard or militia members, Game and Fish reserve members and emergency search and rescue workers.

Although the Arizona workers’ compensation statute seems to be clear as to who is a volunteer and who is not, every great once in a while a dispute arises when a putative volunteer gets hurt on the job and files a claim for benefits.  Litigation over those disputes sometimes results in an appellate opinion that provides some definitive guidance for workers’ compensation practitioners.

The most recent such appellate opinion involved a teacher who was sent by a local foundation to teach English in Africa (Cote d’Ivoire) where she was seriously injured in a bus accident while on a work-related journey.

The foundation for which the claimant worked was a 501c3 non-profit organization focused on adult literacy in African countries.  The claimant had worked for the foundation on a prior assignment in Africa without incident.  After several years at a regular job in the States, she was called by the foundation again and took the assignment on which she was injured.

In a local one-week orientation program prior to departure, the claimant was told that she was being engaged strictly as a volunteer and signed a Participation Agreement to the same effect.  In it, she acknowledged that she would receive a nominal living stipend, not a salary, and some funds to cover visas, inoculations and other travel expenses.  Once settled in Africa, she received a monthly stipend ($850) to cover her living expenses, transportation and incidental expenses. The stipend was not reportable to the IRS as taxable income.

The claimant’s workers’ compensation claim was, of course, denied, and, by the time she got before the ALJ, she claimed, unconvincingly, that she did not understand the nature of her status as a volunteer and believed that she was an employee.  Because of her education, prior participation in the program, many years of teaching experience and, of course, the documents she had signed, the ALJ did not find her credible or her claim compensable.  She appealed.

Not surprisingly, the Arizona Court of Appeals upheld the ALJ’s decision in a published opinion that provides guidance for evaluating similar but, hopefully, more meritorious claims in the future.
In order to be an “employee” eligible for coverage under the workers’ compensation law, the Court said, there must be a contract of hire, express or implied, between the parties in which the worker agrees to work for the employer for some type of payment.  The payment does not need to be in the nature of a traditional salary but must be something of value.

The key requirement is that the putative employee expects to receive and does receive something of value as payment for his/her services.  The totality of the facts regarding the relationship between the employer and the claimant, including their intentions and expectations, must be examined according to the Court.  A volunteer does not expect to be paid a salary or wages.

The final important factor for the Court of Appeals in affirming the ALJ’s award was that the statue created several specific exceptions to the non-coverage rule for volunteers and the claimant did not fit any one of them.  Consequently there was no legislative intention to cover her situation.

While this claimant’s efforts to obtain workers compensation coverage for an injury were doomed from the inception, the Court of Appeal’s opinion provides valuable guidance for more deserving cases that are certain to appear before the Industrial Commission in the future.  One such case involves bartenders at an American Legion Post who, the Post claims, are volunteers because they are not paid any hourly wage or salary but are allowed to keep all tips which were considerable.  It remains to be seen how the Industrial Commission will apply the Court’s opinion to such facts.


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.

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND

POLICE OFFICER PTSD CLAIMS; AN OMINOUS TREND

By Attorney Dennis Kurth

Snow, Carpio & Weekley

In the last few years, in reaction to some very high profile incidents around the country, there has been recognition of the tremendous stress police officers are under as a regular part of their daily duties.  The law enforcement business is fertile loam for workers’ compensation claims especially claims for physical injuries.  Any long-term police officer without a record of several industrial injuries and surgeries is an outlier.

At the same time as there is greater appreciation for the physical and mental stresses of police work there is also, ironically, a clear trend in workers’ compensation law, at least in Arizona, to deprive police officers of coverage for mental injuries, like PTSD, caused by extreme job stress. Mental injury claims by police officers, particularly PTSD, are becoming more prevalent as well as problematic.  There is a lot more official (municipalities) resistance to these claims in Arizona.

Because what any civilian would consider extraordinary stress seems simply to be a daily feature of the life of a police officer, it has become very difficult to win a PTSD claim for a police officer before the Industrial Commission of Arizona.

The Arizona workers’ compensation law was changed significantly in 1980 to increase the burden of proof for all mental stress claims.  The law went from requiring proof of any work contribution to a double hurdle of proof of unusual, unexpected or extraordinary stress that is a “substantial contributing cause” of the mental condition. (A.R.S. §23-1043.01(B)).  The legislature specifically wanted to discourage such claims, at least in the general working population, by making it more difficult to win them.  There was no distinction in the statute for police officers.

Case law since then has held that the test of what is unusual, unexpected or extraordinary stress is an objective one which compares the claimant’s stress to that of fellow officers rather than to the general public.  As one might expect, if all police officers are subject to tremendous stress on a daily basis, it will be near impossible to successfully file a mental stress claim.

A recent Arizona case, now in the Court of Appeals, illustrates this dilemma.  The officer held several different assignments over a twenty year career with the City of Phoenix.  He filed a workers’ compensation claim for PTSD which he attributed to a fifteen-item list of extremely traumatic events including suicides, homicides, child drownings, domestic violence and horrific auto accidents over most of those years.  The final event triggered a flashback that reduced him to sitting in his patrol car and crying.  Finally he sought treatment and was diagnosed with PTSD.

Although the officer had some personal issues related to a contentious divorce and a minor disciplinary matter, both his and the city’s psychiatrists testified that he suffered from PTSD and that the cumulative job stresses on the officer’s list were a substantial contributing cause of his condition.
Both the claimant and the City were represented by experienced workers’ compensation specialists who duked it out, toe to toe, before a very experienced, well-respected ALJ at the Industrial Commission. The officer was specifically found credible by the ALJ but lost the case because, according to the ALJ, he did not prove that his stress was unusual, unexpected or extraordinary compared to other police officers.

What turned the case for the City was the testimony of two high-level, long-tenured officers who said that all police officers are first responders who are exposed to extreme stresses daily in their jobs.  They considered the claimant/officer’s stress to be typical for first responders rather than extraordinary or unusual.  Each also claimed to have personally experienced several shooting deaths, dying declarations and one had been shot himself.  The City attorney also filed documentary evidence consisting of statistics on police staffing levels, listings of drowning calls, summaries of officers who died in the line of duty and other events tending to support its position that extraordinary stress is simply a part of police work.

The ALJ’s award will now face scrutiny by the Court of Appeals but it is not real likely, in this writer’s opinion, that the Court will overturn the ALJ’s award as the objective test of unusual and extraordinary stress has been upheld in other employment contexts as well.  It is more likely to draw the Court’s admonishment that the statute be changed to accommodate these serious and meritorious claims.

In the meantime, it is hard to accept that under a remedial statute intended to protect injured workers, those doing the most dangerous of all jobs cannot receive workers’ compensation benefits because they all face extreme danger daily.  Perhaps eventually this case might spark the legislature to change the burden of proof for police officers in mental stress cases.  Certainly this ominous ruling should not represent how we want our workers’ compensation law to treat our police officers.


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.

TIPS ARE INCLUDABLE IN THE AVERAGE MONTHLY WAGE

TIPS ARE INCLUDABLE IN THE 

AVERAGE MONTHLY WAGE

By Attorney Dennis Kurth

Snow, Carpio & Weekley

Today it might be hard to believe that tips should not be included in the average monthly wages of injured waiters, waitresses and bartenders but that was not always the case.  In fact, for the first sixty-five (65) years of the Arizona workers’ compensation statute and jurisprudence, tips were not included in setting the average monthly wage of injured service-workers.

The statue, A.R.S. §23-1041(D) then, referred to the “monthly wage” as the average wage paid…” in the month before the injury.  That language had been considered clear and unambiguous in referring only to the wages, hourly or otherwise, actually paid by the employer to the worker. Tips had been considered excludable because they are gratuities paid by customers directly to the workers.

Seeking to reconcile conflicting opinions from the Arizona Court of Appeals and to set the law straight, the Arizona Supreme Court, in Senor T’s Restaurant (1982)  addressed the issue head on.
The claimant, a waitress/bartender, was paid $425.80 a month in hourly wages and claimed, without any documentation whatsoever, that she averaged $100 a week in tips.  Apparently, the restaurant had a tip reporting policy of which she claimed to be unaware.

The Industrial Commission’s ALJ accepted the claimant’s testimony and added $400 in tips to her average monthly wage.  The restaurant appealed arguing that the statute was clear and tips were not included in the average monthly wage. The carrier also claimed it would be unfair for them to pay benefits on wages not subject to premium charges.

In workers’ compensation jurisprudence nationally, the mood was decisively in favor of including tips in the average monthly wage.  The overwhelming majority of jurisdictions had so decided and Arthur Larson, the respected national authority, was also in favor.

The Supreme Court, in Senor T’s, was more than accommodating.  Seizing upon the claim that the statue was ambiguous, the Court embarked on a quest of statutory interpretation. Ambiguous statutes, said the Court, must be construed in view of the purposes they are intended to accomplish and the evils they were designed to remedy.

The purpose of the law, of course, was to realistically compensate injured workers fairly so that they would not become charges on the public welfare.  To do so, compensation should be paid based upon the workers’ actual earnings. Everyone knew and expected that restaurant employers often paid service workers less than the minimum wage because they assumed that the workers would also receive tips from customers.  The purposes of the law would be undermined by excluding tips from the average monthly wage calculation. Further justifying their opinion, the Supreme Court raised the specter of a constitutional impediment (equal protection) to excluding tips.

Finally, the Court had to parry the restaurant’s argument that only tips which were reported to the employer (and the IRS) should be included.  Acknowledging that it might seem inequitable, the Court still purposefully declined to impose such a tip-reporting requirement and the Commission’s addition of $400 in tips to the claimant’s average monthly wage based on her testimony alone, stood.

The better practice for service employees, of course, is for them to keep an actual record of actual tips earned and indeed, some do, even if only on a calendar for example.  That makes the proof a lot easier.  So does the courageous support of a comparably-experienced co-worker. The statute itself, although re-lettered (A.R.S. §23-1041(G)) has never been changed but the law on tips in the average monthly wage has long since been considered finally settled.

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.

Medical Source Statements

Medical Source Statements

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

As important as it is to have a good lawyer, it is equally as important to your social security case to have a supportive doctor.  To qualify for social security benefits you must prove that you are unable to work or, in some cases, that you can only do light work.  While there is an occasional outlier, the only way I have seen people successfully prove this, is with supporting medical opinion. 

One of the first things I do when a person comes in is give them a Medical Source Statement form.  It is a form that asks your doctors what your restrictions are.  It specifically asks about sitting and standing limitations, lifting limitations, percentage of time you will be off task, number of days you will be absent from work in a given month, etc.  These forms are the primary evidence I use at hearing in order show that someone is disabled.  Your word alone, albeit convincing, is usually not sufficient to convince the judge that you should receive benefits. 

Whether you represent yourself or have an attorney represent you I recommend having your doctor fill out one of these forms.  The more specialized your doctor is, the more convincing the restrictions will be.  If they are not willing to fill out the form, try finding a doctor who will, or see if they are willing to write a letter that states your restrictions in their own words.  Some doctors do not like being limited to a form.  Versions of this form may be found online.  

If you believe you would qualify for social security disability and need a medical source statement form, feel free to contact our office 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.

THE EXCLUSIVE REMEDY AND THE YARNELL HILL FIRE

THE EXCLUSIVE REMEDY AND 

THE YARNELL HILL FIRE

By Attorney Dennis Kurth

Snow, Carpio & Weekley

The Yarnell Hill Fire was a tragic event that resulted in the deaths of nineteen “hotshot” firefighters on June 30, 2013.  Speculation grew about who, if anyone, was responsible for the hotshots having left a position of relative safety above the fire to move to one of extreme peril in the path of the fire.
The hotshots were direct employees of the Prescott Fire Department (City of Prescott) and their survivors were entitled to workers’ compensation benefits from the City.  They worked in the surrounding wilderness area, however, under an intergovernmental agreement (“IGA”) with the State of Arizona Forestry Division.

Several families of the hotshot victims sued the State of Arizona and State Forestry Division as third-parties whose negligence caused their deaths.  Their theory was that a couple of supervisors directed by the Forestry Division had left their posts and neglected their duty to protect the hotshots.

The State of Arizona and the State Forestry Division argued that the Plaintiffs’ lawsuits were barred by the “exclusive remedy” provision of the Arizona workers’ compensation law.  That section of the statute, A.R.S. §23-1022(A), one of the philosophical pillars of the workers’ compensation law, gives employers who procure workers’ compensation insurance immunity from a civil lawsuit by an injured worker or a worker’s family in the event of the workers’ death.  Workers’ compensation is said to be the “exclusive remedy” against the employer.

The Court of Appeals, in upholding the Superior Court’s dismissal of the Plaintiffs’ lawsuits in McKee v. State, et. al., (Ct. App. 12/30/16), held that the hotshots, because of the IGA, were employees of both the City of Prescott and the State Forestry Division and therefore were barred from suing the State of Arizona and the State Forestry Division by the exclusive remedy statute.
Plaintiffs also argued the sole statutory exception to the exclusive remedy rule, that the State’s actions rose to the level of “willful misconduct” (A.R.S. §23-1022 (A)(B)) as a basis for circumventing the exclusive remedy statute.  Reviewing the statute and case law the Court concluded that the willful misconduct exception required that the Plaintiffs prove that the State had acted with the deliberate intention of harming the hotshots and the Plaintiffs had not even alleged that.  Even gross negligence, according to case law, does not rise to the level of willful intent.  Consequently, Plaintiffs had no cause of action under the exclusive remedy “willful misconduct” exception either.

The McKee case illustrates the continuing strength of the exclusive remedy statute.  Even in the face of a horrific event where the workers’ compensation remedy only provided burial expenses to the mother of the unmarried and childless hotshot in McKee, the law cannot be circumvented easily.  All but three of the Plaintiffs’ cases settled for very modest amounts (about $50,000) before the remaining three went to the Court of Appeals.

Indeed in Arizona jurisprudence, there has been only one case involving the successful application of the willful misconduct exception and that was a case in which the employer shot the employee to death in his office.  (See Bonner v. Minico (1988).  Even in Bonner the result was uncertain because the employer, in the criminal case, argued that temporary insanity deprived him of the ability to form the legal intent to murder.  In Bonner, the Arizona Supreme Court held that the employer wanted to eliminate the decedent and knew that pointing the gun at her and pulling the trigger might kill her and that was sufficient to hold the employer liable in a civil wrongful death action.

Perhaps long in the future more information will appear as to the cause of the hotshots’ death.  As of now, however, only one hotshot survived and he has not yet spoken on the record as to whose mistake might have led to the disaster.


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.

Social Security Disability and Marijuana

Social Security Disability and Marijuana

By Attorney Nicholas Wearne

Snow, Carpio & Weekley

A question some of my clients have asked me is how smoking marijuana could potentially affect their application for social security disability benefits.  I wish I had a hard and fast answer but unfortunately the law is unclear.  When deciding whether you should qualify for benefits an administrative law judge must take into consideration whether the use of drugs and/or alcohol is a contributing factor to why you are disabled.  They must determine whether your condition would continue to exist if you were not consuming drugs or alcohol.  If drugs and alcohol are a contributing factor could lead to a denial.

I recommend that all my clients remain off any drugs that are not prescribed by a doctor including alcohol, nicotine, and marijuana.  Better to be safe than sorry as far as recreational drug use is concerned.  However, if marijuana has been medically prescribed, the law becomes less clear.  In many states medical marijuana use has been legalized even though all use of marijuana is illegal under federal law.  I have seen it used for treating progressive diseases as well as terminal ones like an advanced cancer.

A social security applicant who is considering using medical marijuana should take several things into consideration although my advice is ultimately proceed if you are comfortable with the risk. First, consider the fact that under federal law marijuana is illegal and social security disability is a federal program.  Second, remember that every social security judge is different.  They each have their own opinions and biases.  If the judge does not believe that the medical use of marijuana should be legal it may affect the judge’s decision.  Some judges are fine with it, some aren’t.  Finally, if you are going to use medical marijuana consider ways that you can show its use is for legitimate medical purposes.  For example, make sure you have a medical marijuana card, that you get it from a dispensary, and that its consumption is being prescribed by a doctor. Some doctors are even willing to write letters explaining why the use of marijuana is appropriate.  Make sure that all your doctors know about it.  Many pain management doctors for example will not allow you to be on both narcotics and marijuana.  If you are on both marijuana and narcotics and your doctor gets you in trouble for it, it could really hurt your credibility and ultimately whether you are approved for benefits.   In, sum proceed carefully and at your own risk.

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.

Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law

Why Should You Choose a Law Firm that Specializes in Workers' Compensation Law

By Partner/Attorney Brian Weekley

Snow, Carpio & Weekley

These days, there are many firms that advertise as handling Arizona Workers' Compensation claims. Any lawyer, or law firm, can make these claims. Many firms that specialize in Personal Injury advertise for and take workers' compensation cases. Why should you choose a specialty firm over one of the Personal injury firms?

First, workers' compensation law is a completely different animal than personal injury law. Workers' Comp is a no fault system where the injured worker is paid a percentage of his wage loss for temporary and permanent benefits. All of the medical expenses are covered, with no copays or deductibles.

Personal Injury law is structured as a system where medical bills are gathered, fault is assessed and debated, and demand is made for damages. Most cases are settled with a full release of liability.

Workers' Comp, on the other hand, is designed for long term care of the injured worker. Injured workers should be extremely careful before " settling. " (Actually, the exact term is Compromise and Settlement, and represents a temporary agreement as  to an injured workers' entitlement to benefits, said agreement subject to future modification by reopening, rearrangement and motions).
Settlement amounts act as a credit against future benefits.

Generally, a personal injury firm's model is to settle cases and move on. You don't want this model if you want to maximize the long term benefit of your workers' comp claim. What you do want is protection in the future. We can resolve claims and maintain medical care into the future. This is of benefit to many clients, and is part of our philosophy of " having our client's backs" for the duration of their claim.

Another factor is bookkeeping. When you retain an attorney, all documents , checks and communications are directed to the law firm. The checks must be placed in trust and disbursed to the injured worker. Our firm charges a minimal fee on ongoing benefits. Many PI firms and competitors charge as much as 25% of every single check received on behalf of the injured worker. This often results in overcharging. Beware.

The State Bar of Arizona certifies certain specialties, and workers compensation is one of those specialties. You pay no more for a firm with certified specialists, and in many cases ( see above) the injured worker pays less. Our firm has two specialists, including myself. Many PI firms have no specialists and saddle the client with a sometimes very inexperienced attorney. Experience matters, especially in a system where medical evidence is so vital.

An injured workers' unresolved legal issues ultimately go before a Judge at the Industrial Commission of Arizona. Having an attorney who has done hundreds and thousands of these hearings makes a difference.

I hope that this brief post is helpful to injured workers and their loved ones. Contact us any time for a free consultation. Thank you.

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.

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

CAUTION TO CLAIMANTS ON WORKERS’ COMPENSATION SETTLEMENTS

By Attorney Dennis Kurth

Snow, Carpio & Weekley

The Industrial Commission was given jurisdiction to approve settlements of workers’ compensation cases by virtue of a Supreme Court case in 1986[1] followed by the adoption in 1987 of a set of administrative rules for ALJ’s to follow in approving settlement agreements.

A bona fide dispute and a written settlement agreement signed by the parties with the claimant certifying that they have read and understand the terms of the settlement agreement and were not signing under duress or coercion, are required.  (ICA policies and procedures as published in the ICA Manual, however, do not have the force and effect of the Industrial Commission Rules of Procedure or the workers’ compensation statute).

The question of whether a purely verbal agreement to settle a workers’ compensation case is enforceable against an insurance carrier arose in the context of a claimant who died in a car crash while on his way to his attorney’s office to sign a settlement agreement.[2] The claimant’s heirs sought to enforce the verbal agreement but the carrier, of course, claimed that it could not be enforced because the written agreement had not been signed.

The Industrial Commission, in Tabler, refused to enforce the verbal settlement agreement and the claimant’s heirs appealed.  The Court of Appeals held that a verbal agreement could be enforceable if the parties intended to be bound by the verbal agreement and set aside the Industrial Commission’s award.  The case was remanded to the Industrial Commission to hold hearings to determine the intent of the parties.  In an important footnote, however, the Court held that it was not addressing the issue of whether a verbal settlement could be enforced against an injured worker. 

The case was then settled between the heirs and the insurance carrier.  Since then no changes have been made to the statue or the Industrial Commission rules regarding settlements.  Still, except for the Industrial Commission policies and procedures, no written agreement is required.

Recently, in a memo decision, the Court of Appeals held that an oral settlement could be enforced against the claimant who had simply changed her mind about settling her case and refused to sign the written settlement agreement.[3] In the True Value case, the claimant, whose attorney had withdrawn when she changed her mind about the settlement, was unrepresented in the Court of Appeals and did not even file an answering brief, thereby confessing error.  In addition, the Court felt that, “on this record”, the verbal agreement should be enforced.

The True Value case, even though not a legal precedent, creates a dilemma for claimants, represented or unrepresented. While the carriers and their attorneys, in euphoria over the ruling, will seek to enforce verbal settlements, claimants and their attorneys must now be extremely cautious in settlement negotiations to anticipate every eventuality that could affect their decision as they may not have the luxury of reconsidering their decision before the settlement documents arrive.

True Value will probably not be the last word in the enforce-ability of verbal settlements against claimants and should not be taken as such.  It would be very bad policy for the Industrial Commission to follow for many reasons including that facts can change quickly and injured workers should not be held to verbal agreements under the workers’ compensation law, which is solely designed to help them, until they have read and understood the language of the settlement agreement. 

All claimants contemplating settling their cases should seek the advice of experienced counsel first.  For claimants’ attorneys, the best policy is to advise the carrier or their attorney that they do not intend to be bound by the settlement until the C & S is fully executed and the claimant certifies that they understand all the terms.

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.

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[1] Safeway Stores v. Industrial Commission, 152 Ariz. 42, 730 P.2d 219 (1986).

[2] Tabler v. Industrial Commission, 202 Ariz. 578 (App. 2002).

[3] True Value Company v. Industrial Commission, (Ct. App. 10/4/16).

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

CHANGE OF JUDGE AT THE INDUSTRIAL COMMISSION

By Attorney Dennis Kurth

Snow, Carpio & Weekley

Among workers’ compensation practitioners, the ALJ assigned to one’s case has always been an important factor in the attorney’s strategy and expectations. Over time, not even a long time, most ALJ’s tend, fairly or not, to get labeled as either friendly to one side or the other or prone to resolve certain issues by compromise rather than strictly following the evidence or law.  The administrative process for obtaining a different ALJ was archaic, awkward and grossly out of sync with the civil system.

A legislative change to the workers’ compensation statute in 2016, however, made a party’s entitlement to one change of ALJ a matter of right, aligning it more closely to the procedure in the civil system.

Before last year’s change, in order to get a change of ALJ, a party had to file, within thirty days of the ALJ assignment, an affidavit alleging that the assigned ALJ had a personal conflict of interest or was actually biased and prejudiced against them.  That  usually required the application of a bit of fiction which strained ethical boundaries as well as created an awkward dynamic with the particular ALJ that might, and often did, require consecutive affidavits for every case assigned to that particular ALJ or run the risk of retribution in a later case.

Although the fact that a particular ALJ had a propensity for ruling in favor of claimants or carriers would never constitute proof of actual bias and prejudice, the Chief ALJ had always considered the filing of the affidavit to be a sufficient basis to grant a change of ALJ anyway.

When finally the affidavit process became a weapon for defense attorneys to disqualify ALJ’s who wouldn’t grant continuances on hearings or other accommodations, the process was abused and the Chief ALJ had had enough.

In the new statute, each party is entitled to one change of ALJ as a matter of right if the notice of change is filed within thirty (30) days of the issuance of the notice of hearing.   (See A.R.S. §23-941(I)).  Additionally a party can still file an affidavit for change of ALJ for cause based on a listed conflict of interest or for bias and prejudice even after exercising their automatic strike. They will, however, have to be prepared to prove that the ALJ is conflicted or actually biased and prejudiced or the change of ALJ will not be granted.

The new procedure for changing ALJs is a welcome development that eliminates the fiction of alleging that an ALJ is actually biased and prejudiced and hopefully will smooth relations between workers’ compensation attorneys and ALJs in the long run.

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.