ARIZONA WORKERS' COMPENSATION SUMMARY
WHAT IF YOU DON'T RECOVER
Types of Disabilities
Benefits for a permanent disability will depend on whether the disability is "scheduled" or "unscheduled."
This is an injury specifically listed in the workers' compensation laws. If a worker has a permanent disability based on a "scheduled" injury, the worker will receive a percentage of the "average monthly wage" for the period of time specified for that particular injury in the statute or "schedule."
The "schedule" generally includes disabilities to a single extremity, such as an arm or a leg, but does not include injuries that affect hip or shoulder joints. It also includes other things such as loss of teeth, facial disfigurement or scarring, any visual loss in one eye and hearing loss. (See the discussion under "Unscheduled Disabilities" to understand how some "scheduled" disabilities can be changed to "unscheduled.")
TOTAL: An example of a total permanent "scheduled" injury is the loss of an arm. For example: 55% of the "average monthly wage" for 60 months for the loss of the dominant arm.
PARTIAL: An example of a partial permanent "scheduled" injury is a partial loss of the use of the arm. A doctor determines the amount of loss (percentage of permanent impairment) where the injury is less than a total loss. The worker then receives a percentage of the "average monthly wage" for a part of the time specified in the statute based on the percentage of impairment the doctor determined. For example: If a doctor determines the worker has a 10% impairment in the use of the dominant arm (rather than a complete loss of the arm), the worker receives 50% (not 55% as with a total loss) of his /her "average monthly wage" for 6 months (10% of 60 months) for the dominant arm.
INCREASED SCHEDULED BENEFIT FOR INJURED WORKER FOR INABILITY TO RETURN TO WORK: A worker who cannot return to the work he/she was doing at the time of injury because of a permanent disability may be eligible for an increase in the above compensation for a "scheduled" award. That increase would be in either the percentage of the AMW or in the percentage of disability depending on the date of the injury.
A disability that is not listed in the statutes or "schedule" is an ''unscheduled'' disability. An example is a disability within the "seams of the body" such as a back, shoulder, hip or neck disability.
Some "scheduled" disabilities can be "converted" to "unscheduled" where there has been a previous "scheduled" industrial disability, or a pre-injury disability that has resulted in an actual or potential loss in earning capacity. (For this reason, it is always important to discuss your prior health problems of any kind with your lawyer to be sure that your disability and subsequent benefits are maximized.)
TOTAL: If the injury causes a permanent total "unscheduled" disability, the worker will receive the full 66 2/3% of the "average monthly wage" for life as long as the worker remains "totally disabled." (The same payment may be made even if the injury does not result in "total disability" if the worker suffers a total "loss in earning capacity," and the worker never returns to work.)
PARTIAL: If the injury causes a permanent partial "unscheduled" disability, the worker may receive a percentage of the "loss in earning capacity" as a result of the injury.
Loss in Earning Capacity (LEC)
After an "unscheduled" disability case is "closed," the ICA will make a determination if there has been any "loss in earning capacity" (LEC) caused by the disability. (There is usually at least a 90-day delay from the "closure" of the case with a permanent disability until the ICA makes a determination as to what, if any, LEC the worker has. During this period, the carrier may voluntarily "advance" the worker some compensation, but does not have to do so until the ICA issues its award.)
The LEC is the difference between the "average monthly wage" (AMW) and the wage the worker may earn after being released to return to work measured as of the date of his injury. If the worker is not able to return to the old job, there may be a "loss of earning capacity" caused by the injury. The worker would be entitled to compensation in the amount of 55% of the difference between the AMW and what the worker is able to earn.
Mr. A has an AMW at the time of his injury on 1/1/86 of $1,325.00 per month. Because of his injury, he is unable to return to his regular work but is able to do a job that now pays $4.00 per hour, but that new job paid only $3.50 per hour on the day of the injury. Mr. A would be making $692.80 per month ($4.00 per hour X 40 hours per week X 4.33 weeks $692.80), but would have his LEC based on $606.20 ($3.50 X 40 X 4.33 = $606.20), so his LEC would be $718.80 per month ($1,325.00 - $606.20 = $718.80). His compensation payments would be $395.34 ($718.80 X 55%).
Where there has been a previous "scheduled" disability that has been used to change the second "scheduled" disability to "unscheduled," the ICA permits the carrier to have a "credit" for the prior "scheduled" disability. That credit is prorated over the worker's lifetime pursuant to a table used by the ICA.
Once the ICA makes the determination that the worker has some LEC, the carrier/employer must begin payment of that amount. The worker and/or the carrier/employer may protest any LEC award of the ICA by filing a Request for Hearing with the Commission within 90 days after the award is issued. If the ICA award is not protested, it will become final even if it is wrong!
After the LEC determination is final, the worker is required to complete an annual report of income. Failure to complete the report can result in suspension of the worker's permanent disability benefits. Any change in income may affect the LEC payments as explained in the section concerning "Rearrangement."
Two Or More Disabilities with LEC
Recent cases have determined that you cannot add one loss in earning capacity to another if the total compensation would exceed 66 2/3% of the highest AMW. If, for example, you were to get $500 per month in permanent (LEC) compensation from an old 1986 injury and then suffer another injury in 1995 where you would normally get $1,400 per month, the worker can only draw $900 per month from the second 1995 injury, or a total of $1,400 in combination from the two injuries. If you have a question about this area, consult with an attorney. THIS COULD APPLY TO LIMIT COMPENSATION AT ALL STAGES INCLUDING TOTAL TEMPORARY AND PARTIAL TEMPORARY AS WELL AS PERMANENT COMPENSATION BENEFITS. (The limits do not apply to prior "scheduled" disabilities and payments received from those disabilities.)
While normally a worker who suffers an "unscheduled" disability would not be entitled to any compensation if the worker returns to work with no LEC, there is an exception to that rule. Workers who have had an industrial "scheduled" disability followed by another "scheduled" disability with an injury date after 12/31/85 and who are able to return to work without an LEC are entitled to what is called a "rehabilitation bonus." The amount of this bonus is based on the rating of permanent impairment for the second "scheduled" disability and is paid in the same way as any other "scheduled" disability. The amount paid has to be repaid if the worker later has an LEC from the second disability.
Continuing Medical Care
As discussed earlier, if you have a permanent disability and can prove you need continuing medical care or "supportive care," as it is called, your medical benefits will continue along the lines of the "supportive care." If your condition worsens or changes, you have other rights as indicated in the "Reopening" section of this pamphlet.
Arizona workers' compensation law does not require mandatory rehabilitation for an injured worker unable to return to the date-of-injury employment. It does, however, provide what is known as the "ICA Special Fund" (Fund) to help injured workers who seek vocational rehabilitation. There is no way to force the Fund to rehabilitate a worker and usually the "Fund" approves only those workers who have a professionally prepared rehabilitation plan.
Help may be provided through the State of Arizona Department of Economic Security Vocational Rehabilitation Division in the form of a counselor and a qualified plan. (See the last page for phone number.) From time to time the carrier/employer may also help with counseling and rehabilitation, generally where there is some benefit to the carrier/employer in doing so. (This assistance is not to be confused with a "Rehabilitation Nurse" who is primarily interested only in medical management of the claim.) Again, there is no way to force the carrier/employer to help with rehabilitation, even if the doctors recommend it. The Fund does not generally pay anything other than the cost of the rehabilitation plan (books, fees or tuition). It is up to the worker or carrier/employer to provide compensation (living expenses) for the worker for monthly income during the duration of the plan. Without the carrier's/employer's approval of a plan, it is often difficult to get the Fund's approval since without income, such as continued compensation benefits, the chances of successful completion of any plan are greatly reduced.
We recommend as soon as an injured worker learns from a physician that he or she may be a candidate for rehabilitation, that the worker do the following:
Ask the physician to indicate in his/her reports to the carrier/employer that the worker is not going to be able to return to the former job even with successful treatment.
Make an appointment with the Department of Economic Security Vocational Rehabilitation Division. (It may take several months just to get an appointment and get started, so it makes sense to make the appointment as soon as possible.)
If the worker is represented by an attorney, then he/she should immediately discuss rehabilitation with his/her attorney to help convince the carrier/employer to help with any "plan" that may be developed.