Workers’ Compensation-Questions Answered

What is covered by Workers Compensation?
Workers’ compensation coverage is required by the Arizona Constitution. It exists in all 50 states. It is a benefit that indirectly increases worker productivity, by allowing workers to focus on their jobs, without fear that an injury will leave them destitute.

Workers’ compensation provides complete coverage for medical expenses related to on the job injuries, and limited wage loss benefits. Wage loss benefits are not designed to maintain a pre-injury standard of living. They are limited and are sometimes referred to as sustenance benefits. They are provided as long as the injured worker is medically unable to work due to a job related injury. The low financial benefit also serves as an inducement to return to work.

More About Workers’ Compensation

Robert J. Hommel is a certified specialist, by the State Bar or Arizona, in workers’ compensation.
Injured on the Job.

Do I need to do anything to file a claim?

Arizona law requires that employers carry workers’ compensation insurance. If you have been injured on the job, you must notify your employer. Your employer’s legal obligation is to notify its workers’ compensation carrier, and the Industrial Commission of Arizona. The carrier’s obligation is to investigate the claim and provide treatment to minimize the injury.

Your claim can only be filed in one of two ways. You may file a claim directly with the Industrial Commission. Most the time, the hospital or doctor you first see will file the claim for you.

There are some things you can do to help your worker’s compensation claim proceed smoothly. See:

Ten Things You Should Do if You Suffer a Work Related Injury
Ten Things Your Workers’ Compensation Insurance Company Might Not Tell You
Four Things to do When You Contact an Attorney

Am I ever entitled to more than my medical expenses and partial lost wages? What kind of accidents or injuries are covered?

Workers’ Compensation and Personal Injury.

If you are injured on the job by something you, your employer, or a co-employee did, your only claim is for worker’s compensation. However, if you were injured on the job through the negligence of a person who is not a co-employee, or by a defective product, you may have both a worker’s compensation claim and a personal injury claim. Common examples are motor vehicle accidents, negligence of a separate subcontractor, or defective products.

If you have a claim against a third party who caused your work injury, you can recover your complete lost wages, and damages for pain, suffering, and loss of or damage to familial relationships.

There are special rules affecting these kind of claims. Robert J. Hommel, P.C. is equipped to effectively coordinate the benefits of both of these claims to your best advantage. If the claims are not coordinated properly, the settlement of one claim can have unintended consequences on the other claim. It is important that you understand the legal requirements between these two claims in order to avoid negative consequences, and realize the intended advantage of benefits from both claims.

Personal injury claims with a worker’s compensation component also have shortened time requirements to file a claim. If you do not file a claim in time, it will be assigned automatically to the workers’ compensation carrier. Loss of the personal injury claim results in loss of potential recovery for pain and suffering, emotional distress, and wages that were not covered under the worker’s compensation claim.
Types of Workers’ Compensation Claims.

What if I wasn’t hurt in sudden traumatic accident?

On the job injuries may occur from a sudden traumatic accident, the cumulative effects of heavy labor, repetitive use, or from job related aggravation to pre-existing conditions or aggravation of degenerative conditions. Sudden traumatic injuries, cumulative injuries, gradual injuries, aggravations to pre-existing conditions and aggravation to degenerative conditions are all covered claims under workers’ compensation laws.

Tradeoff of Rights.

Why do I only receive limited benefits, when I may have lost so much more?

Per the workers’ compensation law, injured workers have given up their rights to full compensation for injuries, lost wages, and permanent loss of earning capacity. Pain, suffering, aggravation, and loss of enjoyment of life are not compensated at all by workers’ compensation. In exchange for giving up those rights, the workers’ compensation system has been designed with an intent to provide speedy medical and disability benefits to injured workers, without litigation or prolonged investigation delays. Special rules have been adopted to avoid delays and legal disputes over many issues and get speedy benefits to the worker before all is lost.

What benefits do I get for having given up my rights to full compensation?

A number of rules have been put in place in exchange for giving up your rights.  They are explained below.

Prompt Benefits.

You are covered by workers compensation if you are injured on the job, without having to prove it was anyone’s fault.  Additionally, your worker’s compensation carrier is required to promptly provide all medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, including artificial members, reasonably required for the injury, and during the period of disability. These are called medical benefits. A.R.S. §23-1062(A)

The first installment of wage loss benefits is to be paid no later than 21 days after written notification is sent by the Industrial Commission of Arizona to the insurance carrier, except when the claim is denied. A.R.S. §23-1062(B).

No Fault System.

One of the rules to insure speedy delivery of workers’ compensation benefits is the no-fault system. It doesn’t matter whose fault caused the injury. Benefits are neither increased nor decreased by whose fault caused the injury. If the injury arises out of and in the course of employment it is covered. It doesn’t matter if the injury was the employer’s fault, the employee’s fault, a co-employee’s fault, or a complete stranger’s fault. The elimination of any fault issues is one of the ways the system has been designed to insure the delivery of prompt benefits without dispute.

The Successive Injury Rule.

This is another rule designed to hurry the delivery of benefits. If an old industrial injury is aggravated by a new industrial injury, the new industrial carrier covers the entire aggravation. This rule has been designed to avoid delays in the payment of benefits by two insurance companies fighting over which one should cover the injury.

Coverage for Pre-Existing Conditions.

Especially when you are dealing with laborers, or middle-aged workers, there is no such thing as a perfect physical specimen. By nature, the human body goes through a gradual degenerative process. These are called degenerative changes. If insurance carriers could deny benefits because an injury worsened a “pre-existing” degenerative condition, or the “pre-existing” degenerative condition made the employee more susceptible to injury, no claims would be covered. The worker’s compensation law clearly recognizes that the full extent of medical treatment or disability necessitated by an aggravation to a pre-existing condition, or to a pre-existing degenerative condition, is covered by workers’ compensation. The American worker is not a mere disposable unit.

Gradual Injuries or Cumulative Injuries.

Some employments exert abnormal stresses on the body. Over the passage of time, the cumulative or gradual effect of these stresses, cause a gradual injury to occur. It is a claim for the proverbial “straw that broke the camel’s back.” When a gradual or cumulative injury reaches the point that it requires medical treatment, it is covered under the Workers’ Compensation Act.

What must I do to report an injury?

Reporting an Injury.

Once an on-the-job injury has occurred, the employer has the right to be notified so that it may investigate the circumstances of the injury, and promptly provide treatment to minimize the injury. This legal requirement operates in the interests of both parties. The prejudicial failure to report an injury may act to bar the entire worker’s compensation claim. Therefore, it is important to report an injury to an employer as soon as you reasonably believe you have suffered an injury.

When should I file my claim?

Filing an Arizona Worker’s Compensation Claim.

You have one year to file a claim from the date you were injured or aprreciated that you were injured.  In some cases it  is  important to file a claim as soon as possible, because it generally takes about 30 days to receive an initial determination of the insurance carrier’s acceptance or denial of the claim. By statute, the insurance carrier is allowed 21 days, from notice of the claim, to investigate the claim for acceptance or denial.

A worker’s compensation claim must be filed with the Industrial Commission of Arizona, not the workers’ compensation carrier. It can be filed in one of two ways. The injured worker may file the claim directly with the Industrial Commission of Arizona, or the physician or hospital attending an injured worker will do so, as they are required to report any industrial accidents to the Industrial Commission.

Link: Ten Things To Do If You Have A Work Related Injury.

When will I start receiving benefits after I file my workers compensation claim?

Claim Denial or Acceptance.

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

The purpose of the 21 day limit is to require insurance carriers to rapidly investigate claims, and provide benefits. Carriers that deny claims simply because they have not diligently investigated your claim, are circumventing that intent. Link: Ten Things Your Insurance Company Might Not Tell You.

What can I do if my claim is denied?

The Workers’ Compensation Hearing Process.

If a claim is denied, a hearing request must be received by the Industrial Commission of Arizona, within 90 days from the date of denial. If a hearing request is not received by the Industrial Commission within that 90 days, the denial, or any other notice issued by the carrier, becomes final. It cannot be contested absent demonstration of exceptional circumstances. Forms are available from the Industrial Commission of Arizona. See Resource Links.

Once a hearing request is filed, the claim will be set for a hearing before an Arizona administrative law judge. Both sides have a right to present evidence, including witnesses, medical records, and physician testimony. Once an issue becomes contested and the hearing process has begun, it generally takes six months, and sometimes longer for resolution by a judicial award. Having an experienced workers’ compensation lawyer at the hearing is often critical, as there are numerous issues that can be disputed and presented at hearings in a workers’ compensation claim.

Medical and Disability Stages.

In general, there are three stages to a workers’ compensation claim: temporary total disability (TTD), temporary partial disability (TPD), and permanent partial disability (PPD). Each of these stages is based upon medical decisions. Stage changes will be based upon the opinions of your treating physician or from the carrier’s “independent” medical examination physician. While not all “independent medical examiners” are biased, carriers will sometimes schedule so-called independent medical examinations, with physicians who are reputed to provide biased opinions in favor of insurance companies, in order to avoid medical and disability benefits to its injured workers. IMEs pay lucrative fees. This is one of the ways in which disputes arise which need to be resolved through the hearing process, or in some circumstances, through a bad faith action.
Link: Ten Things Your Insurance Company Might Not Tell You.

Change of Doctors.

You may need to change your treating physician. To change physicians, you need to obtain the consent of your treating physician, or permission of the worker’s compensation carrier, or approval of the Industrial Commission. An appropriate form to request a change of physician is available at the Industrial Commission website. (See Resource Links). It is important to know that if the Industrial Commission denies your request to change physicians, you have only ten business days from the date of the denial to request a hearing. If the denial becomes final, your treatment with that physician will not be paid for.

Average Monthly Wage.

Wages recognized under the Workers’ Compensation Act are capped. The maximum wage recognized under the Act, up to January 1, 2010, is $3,600.00 per month. After that date, the cap may increase yearly by an annual percentage adjustment determined by the Industrial Commission of Arizona. For example, a worker who was injured in 2009, and earning $4,000.00 per month, would have their AMW set at the maximum, $3,600.00 per month. All wage benefits will based on $3,600.00 per month. Benefits over the max are uncompensated, unless you also have a personal injury claim. See Worker’s Compensation and Personal Injury.

You should carefully review all documents received from the Industrial Commission or Insurance Carrier establishing your average monthly wage. If they are set below what you were actually able to earn, or earning, you must file a hearing request within 90 days, or that AMW becomes final.

Wages earned at a second job should also be included in your AMW.

Wage Loss Benefits-Temporary Total Disability (TTD).

TTD means that you are temporarily, totally disabled or unable to work because of your injury. A physician has documented that the injured worker is unable to work, either because time is needed to diagnose the injury and the physician does not want to risk further injury, the injury needs time to heel, or any other reasoning in the physician’s opinion. During this stage, the industrial carrier should pay the totality of medical expenses related to the industrial injury that are provided by the approved physician. TTD benefits are measured on the basis of 2/3 of the AMW, with checks coming in 2-week intervals.

Wage Loss Benefits – Temporary Partial Disability (TPD).

TPD means that you still need medical care, but a physician feels that you are able to return to the duties of your regular work, or perhaps modified or light duty. During this stage, the carrier continues to pay the totality of medical expenses from the approved physician but now pays two-thirds of the difference between your established average monthly wage (AMW) and the wages you are “able to earn” within your medical restrictions. This is an issue that is frequently litigated.

The worker will often contend that his employer does not have light duty available, and that he has looked for other light duty jobs without success, and therefore, is entitled to continuing full disability benefits. Carriers may respond that the worker could have found other light duty jobs, and the carrier will then reduce disability benefits, taking credit for wages it claims the worker was able to earn, even if no wages were earned.

Denial of disability benefits is a tactic sometimes used to force desperate workers to settle for less than what is owed. Disability checks during this stage must be paid at least every 30 days.

Wage Loss Benefits-Permanent Partial Disability (PPD).

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

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

Disability benefits are frequently disputed in Arizona workers’ compensation cases.

Supportive Care.

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

Reopening a Worker’s Compensation Claim

If your claim is closed, the Workers’ Compensation Act allows you to reopen your claim if your injury worsens, or progresses to the point additional medical treatment is required. You will need support from your treating physician stating that your injury is presenting something new, additional, or previously undiscovered that requires active medical care.

To reopen a claim, a “Petition to Reopen” must be filed with the Industrial Commission of Arizona (ICA). The physician’s report must be attached to the Petition. The ICA will notify the workers’ compensation carrier or self-insured employer responsible for your injury of this Petition. The carrier or self-insured employer has 21 days from the date of this notification to accept or deny the Petition in a Notice of Claim Status. If the Petition is denied, you have 90 days from the date of the denied claim to protest the denial by requesting a hearing with the ICA. Failure to timely get a protest on file results in the denial of claim becoming final.

There are a few important things to keep in mind about reopening your prior claim. First, if you need surgery, you must file the “Petition to Reopen” with the ICA before you have surgery. Otherwise the carrier will not be responsible for the procedure. Second, if the new condition is preventing you from working, you will not be entitled to any wage loss benefits prior to the date you filed the “Petition to Reopen”. Third, you must file the “Petition to Reopen” within 15 days of first seeing a physician. The carrier or self-insured employer is not responsible for medical bills generated more than 15 days before the Petition is filed.
Rearrangement.

Arizona law recognizes special circumstances under which you may rearrange, reinstate or increase permanent disability benefits in your worker’s compensation claim. For example, many workers with an unscheduled injury (see Permanent Partial Disability section) overcome their disability and return to work without a loss in their date of injury wages. This is always good, and is to the benefit of the injured worker, the employer, and the insurance carrier or self-insured employer. But if that job becomes unavailable, and you injury hinders you from other employment, reinstatement is possible.

You may also qualify to increase your previously awarded PPD benefits. For example, some workers return to a less strenuous, lower paying job when the claim is closed, and receive PPD benefits because the post injury wages are lower than before the injury. If the lower paying work becomes unavailable and they are unable to secure similar employment, the injured worker may be entitled to increase the PPD benefits.

To seek reinstatement of or an increase in the PPD benefits, a “Petition for Rearrangement” must be filed with the Industrial Commission. Unlike the “Petition to Reopen”, there is no need to file a medical report for rearrangement of the disability benefits. The Commission will grant or deny the “Petition for Rearrangement”. If the Petition is denied, you will have 90 days from the date of denial to protest it by requesting a hearing with the Industrial Commission.

No disability benefits are payable before the date the Petition for Rearrangement is filed with the Industrial Commission.

Lump Sum Settlements.

A workers’ compensation carrier or a self-insured employer may contact you with an offer to settle medical and/or disability benefits for a lump sum payment. There are important risks to consider in making such a settlement.

Medical settlements have been abused in the past. Insurance companies or self-insured’s employers would pay injured workers a small lump sum settlement to give up medical benefits. The injured worker would use the lump sum settlement for his benefit, and obtain medical care through Medicare or other public assistance. This is not how Medicare and public assistance was intended to be used.

Now, all significant medical settlements must be reported to Medicare. Medicare may require all or a significant portion of a medical settlement be set aside for medical expenses only. Failure to properly comply with Medicare requirements can disqualify you from Medicare or public assistance benefits in the future.

If you are receiving Social Security Disability, settlement of worker’s compensation disability benefits must be reported to the Social Security Administration. It may result in a lowering or elimination of your Social Security Disability payments.

In addition, most lay people do not know how to determine the fair “present value” of their monthly benefit checks. Wage benefits should be settled at or near properly calculated present values. Insurance companies have been known to offer only 50% or less of present value in lump sum settlement offers. Proper representation can substantially increase your recovery under these circumstances.

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