ARIZONA WORKERS' COMPENSATION SUMMARY
IMMEDIATE CONSIDERATlONS FOR AN INJURED WORKER
When is an Injury Covered by Workers' Compensation?
Before we can even consider the various options that may be open to an injured worker, It IS important to have some understanding of what things are covered under Arizona Workers' Compensation Law. Generally speaking, our law says that a worker who suffers an "injury by accident" "in the course and scope" of employment that "arises out of' employment has a "compensable" claim. In this section we will attempt to define those terms since they take on a very technical meaning and are sometimes difficult to describe. (IF YOU HAVE A WORKERS' COMPENSATION CASE IN PROGRESS, IT IS VERY IMPORTANT FOR YOU TO READ "PROCEDURES USED IN WORKERS' COMPENSATION CLAIMS" IN THIS PAMPHLET TO BETTER UNDERSTAND YOUR RIGHTS.)
What are Injuries by Accident?
Accident: Some injuries "by accident" are very obvious. They may happen very suddenly and unexpectedly. When such a situation occurs and the injury is clear, a worker will know to file a claim right away. For example: An accident at work which results in a severe cut or the loss of a limb. Other things that are not so obvious can be "injuries by accident" as well, such as bumps and bruises that turn into problems later. A heart attack, stroke, or a nervous breakdown may also be an "injury by accident." The worker has just one year to file a claim with the ICA from the date of the "accident" or the date the worker knew or should have known that the "accident" and medical problems were work related, but he/she must immediately notify the employer of the claim. Failure to file within a year or notify the employer may result in the denial of an otherwise valid claim.
Gradual Injuries: Other injuries may not be so obvious but may happen a little bit at a time over a long period of time and are called "gradual injuries." Some examples of these would include hearing loss from prolonged exposure to loud noises at work, or "carpal tunnel syndrome" as a result of repetitive use of hands at work which might occur in the use of a computer or in certain assembly jobs. A worker may file a claim for a "gradual injury" within one year of realizing such an injury resulted from work or being told by a doctor there is an injury resulting from work. It is always best to file a claim as soon as the worker believes he/she has been injured rather than wait a year.
Occupational Diseases: Other injuries may result specifically from a certain kind of work and may commonly happen to people who do that same kind of work. These are called "occupational diseases" and special rules apply. Examples would be exposure to asbestos in construction or exposure to chemicals that eventually results in a health problem from work common to others who work in that area.
Injuries only indirectly related to work: As long as there is some work relationship, an incident that occurs after hours, not directly related to the performance of the job or even off the employer's premises may still be a valid workers' compensation claim. Trips or work performed after working hours for the benefit or at the direction of the employer would be an obvious example. Another example would be certain recreational or other activities, sponsored by or acquiesced in, by the employer. A less obvious example would be a work related injury that creates a physical weakness, which later results in a new accident and injury.
Exposure to HIV in the Work Place: A.R.S. §23-1043.02 was enacted to cover workers who might be subject to Human Immunodeficiency Virus (HIV) and that law was implemented by the Industrial Commission in Rule 4-13-164. Those employees who suffer a work related "significant exposure" to "bodily fluids" who follow the steps required by law involving reporting and HIV testing within 10 days of the exposure, as well as other requirements, may be presumed to have contracted HIV related to their work exposure if they later test positive for that disease. There may still be some arguments about the relationship of HIV to work but if the worker follows instructions, the new law could be helpful in proving the claim.
"Arising Out of" and in the "Course and Scope of" Employment
Generally speaking "arising out of employment" means that the injury must have its roots in something connected with the employment. Just having something happen on the job may not be enough. An example would be the individual who has a heart attack on the job but was doing nothing physically or mentally stressful at work to cause the heart attack, so that heart attack would not "arise out of employment." The employment connection can be indirect, but it must always be there.
"In the course of employment" is a little easier to define and generally refers to the times that the worker is on the job. There are exceptions. For example, a worker going to or coming from work is not covered by workers' compensation since those are times before and after working hours. But, if the worker was doing something for the employer on the way home, then the worker may be covered.
There are so many exceptions and unusual applications of what is or is not "arising out of" and "in the course of employment" that it would take hundreds of pages to discuss them. The purpose of this pamphlet is just to let the worker know that these requirements exist and must be met be
fore a "compensable claim" exists in Arizona. (A "compensable claim" would entitle the worker to all the benefits under Arizona Workers' Compensation Law, some of which are set out in subsequent sections of this pamphlet.)
The Right to Sue Your Employer
Often the first thing a worker asks is if the worker can sue the employer and/or a co-worker for causing the injury. The answer is that a worker who is covered by workers' compensation insurance CANNOT in most situations sue the employer or a co-worker for any injury occurring at work.
There is only one exception to this general rule. When the employer fails to purchase workers' compensation insurance or to post certain notices or maintain certain forms providing workers the option to reject workers' compensation coverage, the employee may elect either to sue under the "common law" or to claim workers' compensation. (Such a suit still requires that the employer be "negligent" before damages can be collected and the suit carries with it certain risks if it is unsuccessful. This remedy must be approached with great caution.)
If the worker accepts any compensation or payment for non-emergency medical care, even though the employer may have failed to post the proper notice or to provide the proper forms or even to provide insurance, that worker waives the right to sue the employer or co-workers. In summary, acceptance of any kind of compensation benefits will probably forfeit the right to sue an employer or co-workers, if the worker ever had that right.
Practical Suggestions for Filing for Workers' Compensation
THE WORKERS' COMPENSATION SYSTEM WAS SET UP TO PROTECT YOU, THE WORKER - BUT YOU HAVE TO ACT AND TAKE RESPONSIBILITY TO PROTECT YOURSELF AND YOUR RIGHTS UNDER THE SYSTEM!! You cannot rely on your employer or the ICA to do anything for you. You must take care of yourself!
If you are injured on the job:
Tell your employer at once, regardless of how small the injury may seem to you!
If your employer has a "drug or alcohol" test that you must submit to, before or immediately after your first medical treatment, make sure you get the test because your employer might use your failure to get the test as a defense to your claim.
See a doctor at once.
File a claim with the Industrial Commission of Arizona at once. (The carrier/employer has 21 days after being notified of the claim by the ICA to accept or deny that claim.)
After you file a claim with the ICA, be sure to carefully read any papers which you get in the mail from either the ICA or the carrier/employer so you can protest any decisions within the proper time. A DECISION OR NOTICE OF CLAIM STATUS (NCS), EVEN IF IT IS WRONG, WILL BE FINAL UNLESS YOU PROTEST IT WITHIN THE TIME SPECIFIED ON THE DECISION OR NCS.
Remember, once you file a claim, even if it involves no time lost from work, the filing of the claim will protect you for the rest of your life should you have any further problems. Even if the injury is small, FILE THE CLAIM AND PROTECT YOURSELF!