Law Office of Robert J. Hommel, PC.

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.

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 – 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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