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)

Workers' Comp | Statute of Limitations

Don’t Wait To File Your Claim

You want to be sure that you take all of the necessary steps in filing your workers’ compensation claim, so you do not lose your rights to workers’ compensation benefits. Injured workers have a limited time to file a claim for a work related injury. Many times, injured workers across Arizona are unable to file workers’ compensation claims because they simply wait too long.

A statute of limitations is a legally established deadline for filing a claim with an administrative agency or court. The deadline is intended to promote fairness to all parties involved in the legal process (i.e. the injured worker, employer, judge, insurance company, and lawyers).

The statute of limitations for filing your workers’ compensation claim in Arizona is one year from the date you were injured or became aware of your injury or disease. If the signs of the injury or symptoms of the disease occur after the event itself, the statute of limitations begins to run when you discover the injury or when your doctor diagnoses the disease. This happens when:

• The symptoms of a disease do not present themselves until years after exposure. For instance, certain types of cancer caused by contact with toxic chemicals may take years to develop or even be diagnosed by your doctor.

•  A repetitive stress injury resulting from performing the same movement over, and over again during the life of your working career develops progressively. Many times, it is not obvious until the disability is irreversible and severe. These stress injuries are often seen in factory workers, people who use a keyboard constantly, and construction work.

• Damage to an internal organ that is not immediately noticed. This may be the case with a brain injury that shows no outward signs, but is present as headaches, memory loss, and cognitive impairment over time.

If you fail to file your claim by the one-year deadline, you run the risk of losing your right to workers’ compensation benefits for your injury. Furthermore, unless your claim meets one of the rare exceptions, you do not have the right to sue your employer in civil court to collect damages.

THINGS TO REMEMBER:

• Promptly notify your employer of your worksite accident or job-related illness.

• Be aware that you should receive a letter from the Industrial Commission of Arizona within 14 days of the date the incident was reported, informing you that the insurance company has been notified of your claim.

• Your employer’s insurance company has 21 days from the date it receives notification from the Industrial Commission of Arizona to either accept or deny your claim.

• You have 90 days to protest a denial of your claim.

Do not miss the statute of limitations when filing your workers’ compensation claim. Consult with a qualified attorney in good standing with the Arizona State Bar as soon as possible.

Roger A. Schwartz, Esq.

Taylor and Associates, PLLC was founded in 1975, as a workers compensation law firm based on the belief that injured workers throughout Arizona should be represented with compassion and integrity. For more than 35 years, we've provided help with claims for workers compensation, personal injury, and Social Security. For your convenience, Taylor and Associates services the entire state of Arizona.

Contact us at help@injuredworker.com or by phone at 1-800-358-CATS (2287) for your FREE consultation today.

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.

In Arizona, You Can Tape-Record Your Independent Medical Examination ("IME")

Workers’ Compensation Insurance Carrier Suspension: In Arizona, You Can Tape-Record Your Independent Medical Examination (“IME”)

On Nov. 20, 2012, an Arizona court decided whether a workers’ compensation insurance carrier could suspend an injured worker’s benefits for obstructing an independent medical examination (“IME”) because the injured worker stated she was going to tape-record (audio) the examination.

An independent medical examination is simply when a medical professional (usually selected by the insurance carrier) who has not previously seen the injured worker as a patient examines the injured worker.

The issue was brought before the court because Arizona law states that “[i]f the employee refuses to submit to the medical examination or obstructs the examination, his right to compensation shall be suspended until the examination has been made, and no compensation shall be payable during or for such period.”[1]

 The court concluded that a “claimant, who expressed an intention at [the] beginning of [an] independent medical examination (IME) to tape-record the IME, without having made any prior communication about recording it, did not commit a “wrongful act” constituting obstruction of IME”[2]

What does this mean?

 As an injured worker who is seeking to receive workers’ compensation and who is asked to see a doctor to have an IME performed, you can tape record the independent medical examination using an audio recorder.

Why is this important?

The Kwietkauski holding specifies that when you express “an intention at the beginning” of your IME to tape-record the examination, that recording cannot be said to be a “wrongful act” constituting an obstruction.[3] Many cases in Arizona have further stated that “benefits may not be suspended in the absence of a wrongful act by the employee.”[4] You as the injured worker “must ‘volitionally’ (consciously) refuse to attend or obstruct the IME.

What if the IME physician does not allow the tape recording?

Under Arizona law, you have a legal right to audio record your independent medical examination. If the IME physician refuses to allow you to record the examination, he may, “[b]ut a doctor’s policy or preferences [do] not trump [your] right to record [your] IME.”[5] Just remember that the doctor does have the right to say no to the recording or refer you to another physician.

When do I seek counsel from a licensed and competent attorney in good standing with the state of Arizona?

A medical examination can sometimes be an overwhelming experience and not knowing what you can and cannot do only adds to the pressure. As an injured worker you want to be sure that you take all the right steps to ensure your rights are secured so that you can receive the medical care you deserve. The counsel of a competent attorney certified by the State Bar of Arizona as a workers’ compensation specialist is a great way to ensure that you get all your questions answered so that you are able to boldly move forward toward achieving your desired legal goal.

Meet Benjamin F. Manion, a Certified Specialist in Workers’ Compensation by the State Bar of Arizona at Taylor and Associates, PLLP

Benjamin F. Manion is a certified specialist in workers’ compensation by the state bar of Arizona with over 10 years’ experience as a licensed attorney. Mr. Manion is fluent in Spanish and a graduate of Arizona State University.

Contact Mr. Manion on the web at www.TaylorandAssociates.net or by phone at 1-888-650-4798 for your free consultation.

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] Ariz. Rev. Stat. Ann. § 23-1026 (C) (2012)

[2] Kwietkauski v. Indus. Comm'n of Arizona, 231 Ariz. 168, 169, 291 P.3d 365, 366 (Ariz. Ct. App. 2012)

[3] Id.

[4]Edmunds v. Indus. Comm’n, 126 Ariz. 486, 487, 616 P. 2d 946, 947 (App. 1980); Garza v. Indus. Comm’n, 17 Ariz. App. 525, 530, 498 P. 2d 599, 604 (1972).  

[5] Kwietkauski v. Indus. Comm'n of Arizona, 231 Ariz. 168, 169, 291 P.3d 365, 366 (Ariz. Ct. App. 2012)

Arizona Workers' Compensation: You May Be Compensated For Scarring On Your Neck

You May Be Compensated For Scarring On Your Neck.

Earlier this year, 2013, an opinion was issued by the Arizona Court of Appeals which decided whether someone who suffered scarring on their neck while working was eligible for permanent disability benefits.

In this case, a truck driver was transporting sulfuric acid and noticed that the acid was leaking from a hose and went to replace the hose. When the hose became loose it sprayed acid on his face and neck, which caused permanent scarring on his neck (but not his face.) Initially, the Industrial Commission of Arizona awarded the truck driver workers’ compensation permanent disability benefits based upon the scarring to his neck, but later took away the award.^[1] 

The truck driver requested a hearing and testified about his injuries and medical treatment. The Administrative Law Judge expressed concern about whether the truck driver’s injuries constituted a “facial disfigurement.” The scar on his neck was between 4 to 5 inches and was visible at more than 20 feet. He also had discoloration on the right side of his face.  

The administrative law judge had to decide if scarring on the neck should be included in a facial disfigurement and compensated as a permanent disfigurement. The administrative law judge in this case decided that a neck scar did qualify for permanent disability benefits.

The Court of Appeals affirmed the Industrial Commission’s award and concluded that the injured worker was correctly found to be entitled to permanent disability benefits for the scarring on his neck.

Why is this important?

Arizona law states that in order for you to be compensated for permanent disfigurement (scarring), it must be “about [your] head or face.”^[2] Although the statute did not directly state that permanent disfigurement of the neck is compensable, the Court held in this case that the language “about the head or face” included the neck. [3] This case demonstrates that even if the language of the law does not specifically include your condition, the court may interpret that law liberally to include it, depending on the facts of your case.

Having a licensed attorney certified by the State Bar of Arizona as a specialist in workers’ compensation in your corner can make all the difference for you. 

Briana E. Chua, Certified Specialist in Workers’ Compensation by the State Bar of Arizona at Taylor and Associates, PLLC.

 Briana E. Chua has been licensed to practice law in Arizona and California for over 10 years and is a Certified Specialist in Workers’ Compensation by the State Bar of Arizona. She received her B.S. in Speech from The University of Texas at Austin and obtained her J.D. from the Arizona State University. There, she served as an articles editor for the Arizona State Law Journal and completed an externship with Chief Judge Stephen M. McNamee of the United States District Court, District of Arizona. Briana was the 2011-2012 President of the Arizona Asian American Bar Association and the 2012 Co-Chair of the State Bar of Arizona Workers' Compensation Section. She is currently the Treasurer of the Arizona Association of Lawyers for Injured Workers and Benefits Officer of the Animal Law Section of the State Bar of Arizona. She is a member of Los Abogados.

Additionally, she is a contributor to the revised edition of the Arizona Workers' Compensation Handbook.Hispanic Bar Association and the Maricopa County Bar Association.

Contact Ms. Chua on the web at www.InjuredWorker.com or by phone at 1-888-650-4798 for your free consultation.

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[1] Bulk Transportation v. Industrial Commission, No. 1 CA-IC 12-0035, (Ariz. App. May 7, 2013). 

[2] A.R.S. § 23-1044(B)(22)

[3] Id.