Workers’ Comp and Third Party Claims

Arizona Workers’ Compensation law prevents injured workers from suing their employer or co-workers for an injury at work. Many folks assume that they are not entitled to a civil action because they are receiving workers compensation from their employer, but that it not always the case. Injured workers may be entitled to a civil action against a third party (someone other than your employer or co-worker) when the third party was responsible for causing your injury.

Although third party claims vary from case-to-case, there are general rules that need to be considered to successfully recover. These rules are important because workers’ comp may not always fully compensate the harm you have suffered, and a third party claim might be your only chance of being fully compensated.

Many rules govern workers’ compensation and third party claims. However, the rules below are some very important rules you should be aware of if you intend to make a third party injury claim for an on the job injury.

• Deadline to file claim – if you are entitled to workers’ comp benefits, the deadline for filing a claim against a third party is one year after the accident that caused the injury. Once this deadline passes, the right to file a claim is assigned to the insurance carrier. Under certain circumstances you may be able to have the claim re-assigned back to you by the workers compensation insurer, but this may not be possible in all cases. Therefore, it is very important to take the steps necessary to pursue a third party claim within the first year following the accident.

• Notice – the injured worker is required to provide written notice to the insurance carrier of their intent to bring a claim against a third party. In addition, the injured worker is also responsible for providing the insurance carrier with timely notice of all of the pleadings, and rulings regarding the status of the action.

• Settling claims – when settling a claim with a third party, you must obtain the workers compensation insurer’s written consent before settling, failing to do so may jeopardize your right to workers compensation benefits in the future.

• Settlement liens – if you settle a claim with a third party, the workers compensation insurer might be entitled to a lien against your recovery from the third party. If this is the case, the insurer is entitled to a lien against “compensation, and medical, surgical and hospital benefits.”[i] It is important to note that an insurer cannot recover for any administrative expenses or the cost of an IME (independent medical examination) from a settlement lien.

Sebastian Brugliera, Esq.

Being aware of these rules will help your chances to recover in a civil action against a third party. We understand that remembering all of the rules can be quite difficult and there may be other rules, and shorter time limits that apply in some cases. Contact Taylor & Associates to help make this difficult process as easy as can be. Our attorneys are experienced, and will assure that your claim is properly handled.

Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship. The information of this blog was believed to be accurate at the time that it was written.

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[i] Ariz. Rev. Stat. § 23-1023(C)

Which way does the scale tip?

If you are hurt on the job and file a workers’ compensation claim, chances are that you will have to meet with a healthcare professional to discuss your injury. It is very common that a doctor or medical examiner will ask you a series of questions to determine the level of pain you are experiencing. It is important to properly answer the questions asked by the healthcare professional because it can affect your pain management.

It is common for your doctor or medical examiner to ask you questions to help determine the amount of pain you are experiencing so they can better manage your pain. You are expected to answer the questions to the best of your ability. Doctors and medical examiners administer a very common questionnaire called the Visual Analog Scale. This questionnaire might seem simple at first, but may actually be quite difficult if you do not know how to properly answer the questions.

The questionnaire asks questions, and you are to answer the questions based on a scale (i.e. 1 to 10 or 1 to 5). Sometimes, the scale has images associated with each number. The images are very helpful because they are normally faces that are expressing levels of pain. If there are no images, there should be instructions. The instructions will most likely have a statement of an amount of pain that is associated with a number on the scale. It is important you know what the scale actually means. Below is an example of a set of instructions for a scale found in a questionnaire[1]:

Level 1 = My pain is barely noticeable.

Level 2 = My pain is noticeable with no distress.

Level 3 = My pain is disturbing but with no distress.

Level 4 = My pain causes me some distress, but I have no coping problems.

Level 5 = My pain causes me distress; I have some coping problems.

Level 6 = My pain causes me distress; I have significant coping problems.

Level 7 = My pain is starting to interfere with my ability to function.

Level 8 = My pain is causing moderate interference with my ability to function.

Level 9 = My pain is causing sever interference with my ability to function.

Level 10 = I’m unable to function at all because of my pain.

Please remember that this is only an example of what a set of instructions may look like. Also, if you are unsure of what something means in the instructions provided to you, be sure to ask your doctor.

Tom Whitley, Esq.

The questions become more difficult if there are no instructions or images provided. If this is the case, be sure to ask the medical examiner to tell you the actual meaning of the scale and numbers. Always remember to keep the instructions in mind because your answers will provide the doctor with valuable information that can alert him to changes in your condition.

If you were hurt on the job, you may have many questions regarding your injury and what steps you need to take. The experienced and knowledgeable attorneys at Taylor and Associates, PLLC are ready to answer your questions. Contact us at help@injuredworker.com or by phone at 1-800-358-CATS (2287).


Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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[1] Pain Scale document provided by Sierra Tucson.

Employee? Independent Contractor? | Know the Difference

There is a difference between being an independent contractor and an employee. Of course there are more obvious differences such as whether there are any deductions taken out from a check and who negotiates contracts, but these different classifications could also significantly affect your rights if you are injured on the job. On occasion, employers attempt to classify their employees as independent contractors because they want to avoid paying workers’ compensation insurance, taxes, and being responsible under other labor laws.

In Arizona, employers are not required to provide workers’ compensation insurance for independent contractors. That said, just because an employer tells you that you are classified as an independent contractor does not necessarily mean you are an independent contractor under Arizona workers’ compensation laws. Even if your employment contract states that you that you are classified as an independent contractor, you may still be entitled to workers’ compensation benefits in Arizona. A lot of the time, workers do not know or understand the difference between being an independent contractor or an employee. Frankly, the employers often do not know either. There is no bright line rule or one test that is used to make that determination.

In Arizona, courts will look at the situation as a whole to determine whether a worker is classified as an independent contractor or an employee under the workers’ compensation act. Courts normally consider the employer’s right to control the worker. The language of the employment contract is not the only consideration either; courts consider the facts of the individual situation. Keep in mind that courts make the determination on a case-by-case basis.

Having the status of an employee, and not of an independent contractor, is important because if you are an employee, the employer is required to have workers’ compensation insurance, which would provide you with workers’ compensation benefits. This means that if you get hurt on the job, the employer may be held responsible for the economic losses associated with your injury. An employee can recover against the employer under workers’ compensation, and usually does not have any other form of relief.

If you are considered an independent contractor, you still may be entitled to some form of relief from the employer. Independent contractors may not be entitled to workers’ compensation benefits, but are able to bring a civil action against the employer. Although the employer is not required to provide workers’ compensation insurance for independent contractors, workers can cover themselves on a

Briana E. Chua, Esq.

workers’ compensation policy. Generally, self-coverage is a good alternative for independent contractors. If you are in a situation where you have to choose between being classified as an employee or an independent contractor, consider the cost of workers’ compensation coverage before deciding.

If you were hurt on the job, you may have questions regarding the classification of your employment and what steps you need to take. The experienced and knowledgeable attorney’s at Taylor and Associates, PLLC are ready to answer your questions. Contact us at info@injuredworker.com or by phone at 1-800-358-CATS (2287).

Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Professional Athletes and Workers’ Compensation

 Did you know that professional athletes and even some retired professional athletes may be eligible for worker’s compensation benefits?

Workers compensation is a "no fault' system of insurance that provides you with certain benefits in the event you have a job-related injury or illness. If you work as an athlete for a team, and you are injured while playing for that team, you were most likely injured at work. “No fault” means that even if you or a co-worker was negligent in causing your injury (A 300lb. 6’5’’ Linemen Tackled me), you're still covered. Depending on your circumstances, you may be eligible for:

·         Compensation for your medical expenses,

·         Temporary or permanent compensation for lost wages, and/or

·          Job retraining

Arizona workers’ compensation laws consider the following to be job related:

·         Injuries or illnesses that result in the immediate onset of symptoms,

·          Injuries or illnesses that result in delayed symptoms that may not appear for days, weeks or months after the incident,

·          Medical conditions that developed "gradually" over a period of days, months or years as a result of work-related activity,

·          Preexisting medical conditions aggravated by a specific accident at work or a "gradual" aggravation caused by work-related activities over a period of days, months or years[i]

 

THE GAME HAS CHANGED: Arizona Cardinals Fullback Must Play Out Workers’ Comp Claim On His Home Field

Workers’ compensation benefits are available in each state, but the process and potential benefits usually differ. Some states, like California, are known to have more liberal workers’ compensation laws that allow for more claims by including more categories of covered injuries and illnesses. But, because of recent decisions such as the case of McKinley v. Arizona Cardinals and California AB 1309[ii] things have changed. ^[iii]

In Arizona, it is mandatory for an employer to carry workers compensation insurance. A resident of Arizona who works for an Arizona business would file their workers’ compensation claim in Arizona. However, this has not always been the case for professional athletes.

NFL, MLB and NBA players have often sought to file workers’ compensation claims in California “including Earl Campbell, Deion Sanders and Tony Dorsett,” even when they did not live or play there.  You see, “California is one of only a handful of states to recognize cumulative trauma, a category of injuries that are incurred over time.”



Sports and Workers' Compensation

The case of the former Cardinals fullback

Dennis McKinley is a former running back with the Arizona Cardinals who played a few seasons for the team after being drafted in 1999. He filed a workers’ compensation claim in California relating to injuries he sustained while playing for the Cardinals. He was one of many NFL players to argue that the few games or practices he had in California entitled him to file his claim for wear-and-tear injuries. The Courts disagreed, citing McKinley’s contract which required his workers’ compensation claims to be brought in Arizona.[iv] At about the same time the California Supreme Court refused to hear the appeal of the McKinley case, California itself passed a new law that prevented professional athletes from other states from filing claims in California.

Workers’ compensation claims in professional sports

It appears baseball players with the Diamondbacks and football players with the Cardinals will have to bring workers’ compensation claims in Arizona or in other states where they played for the home team. Due to the physical nature of professional sports, there is no shortage of work-related injury claims made each year, and the benefits paid can be very high when you consider they are based on the player’s salary. However, there are often disputes as to whether the particular injury fits into the workers’ compensation schedule, so as to be covered. Professional sports injuries include:

·         Debilitating injuries that get worse over time and may shorten a career

·         Concussions and other neurological damage 

·         Physical injuries that force the player to miss significant playing time and also impact their future ability to perform, such as torn ligaments in the knee or a rotator cuff injury to a shoulder

If you were hurt on the job, you may have many questions regarding what steps you need to take next. The experienced and knowledgeable Arizona Workers’ Compensation attorneys with Taylor and Associates, PLLC are ready to answer your questions. Contact us at info@injuredworker.com or by phone at 1-800-358-CATS (2287)

 


Dennis Kurth practices in the area of Workers’ Compensation and is a Certified Specialist by the State bar of Arizona. He graduated from Washington University School of Law in St. Louis. Dennis co-authored the 'Exclusivity and Third Party Liability' chapter of the Arizona Worker's Compensation Handbook (1992). He was a member of the Workers' Compensation Advisory Commission to the Arizona Board of Legal Specialization and was Chairman of the Advisory Commission from 1987 to 1994. Dennis has been recognized in Best Lawyers in America. In his spare time Dennis’ favorite pursuits are adventure travel, rafting, biking and hiking.

 

 












Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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[i] http://www.injuredworker.com/aop/arizona-workers-compensation

[ii] http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1309

[iii] http://www.latimes.com/business/money/la-fi-mo-governor-athlete-workers-comp-20131008,0,7152629.story#axzz2wFB573Tr

[iv] “Mr. McKinley had a limited connection to California, and a forum selection and choice of law clause in the parties' employment contract.”

DENNIS MCKINLEY, PETITIONER, THE WORKERS' COMPENSATION APPEALS BOARD OF THE STATE OF CALIFORNIA, ARIZONA CARDINALS AND TRAVELERS INDEMNITY FOR GULF INSURANCE, RESPONDENTS., Case No. ADJ 7460656, 2013 WL 4442066 (A.F.B.R. Feb. 27, 2013)

 

Phoenix’s largest workers’ compensation law firm volunteers their services to the families of the Yarnell Hill forest fire

Taylor and Associates, PLLC: Phoenix’s largest workers’ compensation law firm volunteers their services to the families of the 19 members of the Granite Mountain Interagency Hotshot Crew of the Yarnell Hill forest fires for help on any issues for the workers’ compensation claims.

                                 
However, on December 4^th, 2013 the Arizona Division of Occupational Safety and Health (“ADOSH”) fined the Arizona Forestry Division $559,000.00 for violating workplace safety regulations which also includes $25,000.00 for each of the families of those 19 members lost that day.

In an investigation conducted by the Wildland Fire Associates, a non-profit organization, it has been concluded that (as reported in part):

·         FIRE BEHAVIOR WAS EXTREME AND EXACERBATED BY THE OUTFLOW BOUNDARY ASSOCIATED WITH THE THUNDERSTORM (which caused the fire). THE YARNELL HILL FIRE CONTINUALLY EXCEEDED THE EXPECTATIONS OF FIRE AND INCIDENT MANAGERS, AS WELL AS THE FIREFIGHTERS.

·         ARIZONA STATE FORESTRY DIVISION FAILED TO IMPLEMENT THEIR OWN EXTENDED ATTACK GUIDELINES AND PROCEDURES…

·         THE INCIDENT MANAGEMENT DECISION PROCESS FAILED TO RECOGNIZE THAT THE AVAILABLE RESOURCES AND CHOSEN ADMINISTRATIVE STRATEGY OF FULL SUPPRESSION AND ASSOCIATED OPERATIONAL TACTICS COULD NOT SUCCEED…

·         RISK MANAGEMENT WEIGHS THE RISK ASSOCIATED WITH SUCCESS AGAINST THE PROBABILITY AND SEVERITY OF FAILURE. ASFD FAILED TO ADEQUATELY UPDATE THEIR RISK ASSESSMENT …^[i]  

As a result of the investigations, the Arizona State Forestry Division (“ASFD”)has been cited for violating A.R.S 23-403 (A) “Willful Serious”, an Arizona OSHA statute

The [ASFD] did not furnish each of [the firefighters] employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to their [firefighters]…. [Furthermore], When the ASFD knew that suppression of extremely active chaparral fuels was ineffective and that wind would push active fire towards non-defensible structures, firefighters working downwind were not promptly removed from exposure to smoke inhalation, burns, and death.^[ii]

 And, A.R.S. 23-418.01 the“[a]dditional penalty for willful or repeated violation causing employee permanent disability or death covered by workers' compensation….” The additional penalty spoken of is $25,000.00 which is to be given to the dependents of the fallen firefighters or the estate of those that died, who did not have dependents.

For the full press release click here.

Arizona firefighters are a vital part of our community. They risk their lives day in and day out to protect our homes, our families, and us. Serving Arizona’s injured workers since 1975, Taylor and Associates, P.L.L.C. currently works closely with many fire departments and individual firefighters and is offering free representation for those families affected by the Yarnell fire on any worker compensation claims. 

Our attorney Weston Montrose, a certified workers’ compensation specialist by the State Bar of Arizona, was previously a staff attorney for the Arizona Industrial Commission and has prosecuted O.S.H.A violations for Arizona Division of Occupational Safety and Health (“ADOSH”).

Procedure= settlement possibility, hearing before Industrial Commission of Arizona (“ICA”) Administrative Law Judge (“ALJ”), appeal to OSHA review board.

                                                                                                                                                       Contact: Taylor and Associates, P.L.L.C at www.injuredworker.com or by phone at 1-800-358-2287

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[i] O'Brien, Dan, Elizabeth Anderson, Barry Hicks, Dave Larsen, and Darrell Schulte. United States, Arizona. Arizona Division of Occupational Safety and Health. Granite Mountain IHC Entrapment and Burnover Investigation: Yarnell Hill Fire - June 30, 2013. Wildland Fire Associates, 2013. Web.

[ii] Industrial Commission of AZ Division of O.S.H.A. Citation and Notification of Penalty, Inspection No. L3419-317242683, Issuance Date: 12/05/2013.

Attorney Advertising. This blog site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.