II. PROCEDURES USED IN WORKERS' COMPENSATION CLAIMS IN ARIZONA

Notice of Claims Status (NCS) and its Importance

THE NCS CONTROLS ALMOST EVERYTHING THAT HAPPENS IN A WORKERS' COMPENSATION CASE AND THESE NOTICES ARE THE MOST IMPORTANT THINGS A WORKER RECEIVES DURING THE ACTIVE PART OF THE WORKER'S CLAIM. After a worker files a claim for workers' compensation, the carrier/employer will send the worker a NCS to explain what decisions are being made about the claim.

A NCS notifies the worker of such things as: whether the claim is accepted or denied; what benefits are being provided; what "average monthly wage" has been set for paying benefits; when the worker's benefits are terminated; whether the injury caused a permanent disability; what type of disability has been determined; and what percentage of impairment exists.

A NCS HAS A 90-DAY PROTEST PERIOD WHICH IS CRITICAL AND MUST BE FOLLOWED! (Some other notices or awards issued by the carrier and the ICA have shorter deadlines, so all communications should be read carefully to make sure deadlines are not missed.) The NCS instructs workers to "request a hearing" if they disagree with the NCS and to file that "Request for Hearing" at either the ICA office in Tucson or Phoenix. If those instructions are not followed and, for example, the Request for Hearing is lost in the mail, the NCS will become final because it was never "protested."

Unlike some states, Arizona does not require the worker to "sign off' or agree to any change in compensation status. All an insurance company/employer has to do is issue a NCS and mail it to the last address provided by the worker. If the worker ignores the notice, the worker may suffer the consequences. The worker has the burden to do almost everything in a workers' compensation case. NOT UNDERSTANDING THE LAW OR "FORGETTING" TO DO SOMETHING IS NO EXCUSE!

Change of Address

THE WORKER MUST KEEP THE ICA, THE INSURANCE CARRIER AND THE ATTORNEY INFORMED OF HIS/HER CURRENT ADDRESS AT ALL TIMES! If our office is representing, we believe that this is so important that we ask for a backup person to contact, such as a relative, who knows where the worker can be reached in an emergency. We also ask the worker to update the backup person's address and phone as well as the worker's own. Failure to inform the ICA and carrier IMMEDIATELY of any address change may result in the ICA or carrier mailing a NCS or some other notice to the wrong place. The worker would still be responsible for receiving the notice and all the time limits would continue to run against the worker.

Leaving the State

A WORKER CANNOT LEAVE THE STATE OF ARIZONA FOR MORE THAN 14 DAYS WITHOUT PERMISSION FROM THE ICA IF HE/SHE IS RECEIVING ACTIVE MEDICAL TREATMENT! If you fail to request permission and leave the state, your compensation benefits and medical care are suspended, and the insurance carrier/employer is under no obligation to pay bills or compensation while you are out of the state. If you are represented by our firm, we will take care of the written request to leave the state if you tell us of your plans, but you should do so at least 30 days before the trip.

Hearings Before the ICA

Assuming a worker or an attorney or the carrier/employer has timely requested a hearing within 90 days and in the manner explained on the NCS, the matter is then referred to an Administrative Law Judge (ALJ) who will set a hearing about 3 to 4 months after the request is filed. Additional hearings may be held after the first hearing, especially where it is necessary to take testimony of physicians. All hearings include live testimony from physicians or other witnesses. This testimony is recorded by a court reporter in much the same fashion as in any other court. The "parties," or those present and/or are represented at the hearing, at a minimum, consist of the injured worker, sometimes called the "claimant" or "applicant," the employer and/or the insurance company for the employer, sometimes called the "carrier," and each party's attorney. The ALJ is an employee of the ICA, and he or she rules on motions (and other legal matters) before, during and after the hearing like any other judge, but he or she is also the finder of fact and law. (There are no juries or jury trials in workers' compensation cases in Arizona.) After a Request for Hearing is filed and before the first hearing is held the Rules of Procedure before the ICA provide for what is called "discovery." Generally that involves the lawyers submitting "interrogatories" or questions to the parties of a claim as well as taking "depositions" of parties or witnesses who may have information about the subject to be litigated at the hearing. Depositions are formal question and answer sessions where a lawyer (or a party if unrepresented by a lawyer) asks questions of the other party or a witness after the person is placed under oath. A court reporter takes down what is said. Discovery is the way the lawyers or parties learn what the other side's legal and factual position is before the hearing and this procedure has many deadlines and time limits. The deadlines are explained in the Rules of Procedure before the ICA and, in most instances, discovery procedures must be started at least 40 days prior to the first scheduled hearing. FAILURE OF A CLAIMANT TO ANSWER INTERROGATORIES OR APPEAR AT DEPOSITIONS CAN RESULT IN SERIOUS PENALTIES INCLUDING HAVING THE CLAIMANT'S REQUEST FOR HEARING DISMISSED.

Even if the claimant is not represented by a lawyer, he or she still has the responsibility of knowing all the time limits and deadlines, both for discovery and the presentation of evidence at hearing. Those deadlines are contained in the Rules of Procedure before the ICA and include submission of medical reports or medical evidence at least 25 days before the first scheduled hearing, requesting the ALJ issue subpoenas for medical witnesses at least 20 days before the first scheduled hearing; and requesting that the ALJ issue subpoenas for "lay" or non-medical witnesses at least 10 working days before the first scheduled hearing, to name a few of the deadlines. THE CLAIMANT, REPRESENTED OR NOT, MUST ATTEND ALL HEARINGS UNLESS EXCUSED BY THE ALJ. FAILURE TO DO SO CAN LEAD TO THE CLAIMANT'S REQUEST FOR HEARING BEING DISMISSED OR OTHER PENALTIES OR SANCTIONS.

If a lawyer is representing, he/she takes care of the deadlines and makes sure everything is done on time, assuming the attorney is hired by the claimant early enough to do so. THE LAWYER STILL NEEDS THE COOPERATION OF THE CLAIMANT AS WELL AS HIS OR HER ATTENDANCE AT ALL MEDICAL APPOINTMENTS, DEPOSITIONS AND HEARINGS. The procedures that have been set up by the law and the ICA have many complications and twists, and it is recommended that every claimant who requests a hearing be represented by a lawyer, especially SINCE EVERY INSURANCE CARRIER/SELF-INSURED EMPLOYER WILL HAVE A LAWYER REPRESENTING IT.

After all the hearings are completed, the ALJ should issue an AWARD within 30 days, although sometimes it takes longer. Any party who is not satisfied with the Award may, within 30 days, file a Request for Review of the Award. The same ALJ will then review the evidence in the file and any legal arguments made with the Request for Review or the response to that request and issue a Decision on Review about 30 to 60 days thereafter. The Decision on Review may affirm the original Award, modify, or reverse the Award. Any dissatisfied party may then take to the Court of Appeals of Arizona, or even to the Supreme Court of Arizona, additional appeals. Such appeals could delay a final determination in the matter for a year or more.

When You Are Represented by an Attorney

Your responsibilities in your case do not end when you hire an attorney. In addition to keeping the attorney informed of your address and phone number, YOU MUST MAKE CERTAIN THAT THE ATTORNEY HAS COPIES OF EVERYTHING YOU HAVE RECEIVED OR SHOULD RECEIVE IN THE FUTURE FROM THE ICA OR THE CARRIER/EMPLOYER!

YOU MUST ALSO ATTEND EACH HEARING, EACH MEDICAL EXAM SET BY EITHER THE ATTORNEY OR THE CARRIER/EMPLOYER AND ATTEND ANY DEPOSITION SET BY THE CARRIER/EMPLOYER. Failure to attend an exam, hearing or deposition may result in the dismissal of the Request for Hearing or assessment of the cost of the missed medical exam against you, or some other penalty.