Matt C. Fendon 2013-04-04 07:06:06
Compensating the Injured Worker whom Continues to Work Post Accident Matt Fendon is a shareholder with Fendon Law Firm, P.C. The firm handles workers’ compensation, social security disability, employment, and landlord/tenant cases with offices in Phoenix, Prescott, and Flagstaff. Mr. Fendon has worked in the workers’ compensation industry since 2001. He started as a certified paralegal and graduated from law school in 2008. He was licensed to practice in AZ the same year. He has a 10.0 (“Superb”) rating with Avvo.com. He is a member of the Arizona Trial Lawyers Association, the Worker’s Injury and Law Advocacy Group (WILG), the worker’s compensation section of the State Bar, and he is board member with the young lawyer division of the MCBA. Matt can be reached at 602.256.2000 ext. 306 or via email at MFendon@fendonlaw.net. Division 1 of the Arizona Court of Appeals will be deciding in the near future whether an injured worker who continues to work after an accident, but misses time from work due to attending medical appointments related to the injury, is entitled to indemnity benefits under our workers’ compensation scheme. The case is very close to my heart. At the time of publication of this article, I will have already argued the issue in front of the Court of Appeals. I represent the injured worker. My client worked as a legal secretary prior to her injury. After the injury, she was able to return to her date of injury occupation but did have work restrictions from her physicians. She testified in an administrative hearing in front of a judge that she was owed compensation accrued over a period of approximately one year and a half for her time missed due to attending doctor’s appointments related to the injury. She confirmed in the hearing that she missed more than seven days due to these medical appointments. This is an important fact based on the subject statute which we will discuss below. The statue that is at issue is A.R.S. 23-1062(B). That statute says, “compensation shall not be paid for the first seven days after the injury. If the capacity extends beyond the seven days, compensation shall begin on the eighth day after the injury, but if the disability continues for one week beyond such seven days, compensation shall be computed from the date of injury.” In a workers’ compensation case, there are two types of temporary disability: temporary total, and temporary partial, temporary total is usually applicable when the injured worker is on a “no work” status from his or her employer. Whereas, temporary partial disability applies when the injured worker is on a “light duty” status and is unable to earn what he or she was earning before the industrial injury due to his or her light duty capacity. There is currently no Arizona case that specifically defines whether the seven-day waiting period is based on a total or partial disability. However, there is an Arizona case from 1985 that granted an injured worker temporary partial disability benefits when the claimant missed approximately 82.5 hours of work due to attending medical appointments related to his treatment. Maricopa County v. Industrial Commission, 145 Ariz. 14, 699 P.2d 389 (App.). This seems to be the closest case for my scenario. In Maricopa County, the injured worker was never placed on a total disability status for seven days. His 82.5 hours of work missed were paid with temporary partial disability benefits. The crux of the defendants’ argument is that the injured worker must be on a total disability status for seven days before he or she is eligible for partial disability benefits. As mentioned above, the statute does not clearly articulate whether a total or partial disability is required for the seven-day waiting period to be met. Here, my client missed significant time from work due to attending medical appointments. Her actual earnings were reduced because of the treatment required for her industrial injury. In fact she missed almost 6 weeks of pay due to attending the appointments. I will argue that my client is due temporary partial disability benefits for those 6 weeks because the statute does not clearly articulate whether the 7 day waiting period must be met on a total disability status before temporary partial benefits are payable. I am not certain how the court will end up ruling on this matter. The statute definitely needs to be clarified for future reference. It seems to me that deciding an injured worker is not entitled to disability benefits until he or she has been on total disability for a full seven days would penalize folks who have continued to work since the accident, instead of staying home.
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