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(c) 2014 Jon L Gelman, All Rights Reserved.

Wednesday, September 30, 2009

AIG Claims Conspiracy by Liberty and Hartford

AIG, an insurer bailed out by the US, now claims that other workers' compensation carriers entered into a conspiracy against them by underreporting their premiums. In an amended complaint filed last week in the Federal Court in Chicago (USDCT N.D. Ill.), AIG alleged that Liberty Mutual and Hartford/ACE entered into a conspiracy to underreport their premiums.

Premium calculations determine contributions to State compensation funds that cover State operated programs for employers unable to secure coverage in the open market. These include high risk employers.

National Workers Compensation Reinsurance Pool v. American International Group Inc., 1:07C-2898, U.S. District Court, Northern District of Illinois


CMS Terminates Voluntary WC Data Match Program

CMS has formally terminated the voluntary WC Data Match program that it instituted several years ago. With the enactment of Section 111 Mandatory Insurance Company reporting the voluntary program afforded to States and Insurance Company has been terminated.

In a letter to those participating CMS stated:

"This voluntary reporting arrangement has now ended. On July 1, 2009, Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (the MMSEA) became effective for Workers’ Compensation insurance coverage. As of that date, the reporting of Workers’ Compensation information in support of Medicare Secondary Payer (MSP) determinations by CMS became mandatory. All existing voluntary reporting arrangements involving Workers’ Compensation programs are now null and void.


"July 1, 2009, is the date Section 111 reporting became effective, but it is not the date that states will begin to report Workers’ Compensation information under the Section 111 requirements. In summary, states that will be reporting Workers’ Compensation data through the Section 111 process are required to register for Section 111 reporting by September 30, 2009. The testing of the electronic data exchange process will start January 1, 2010. The first “production” file exchanges will start April 1, 2010.


"The process for arranging Section 111 reporting, and all the reporting timeline benchmarks that have been established are described in full on the Section 111 Website, www.cms.hhs.gov/mandatoryinsrep . The current version of the “NGHP User Guide” and additional instructions needed to report Workers’ Compensation information are located on the Website’s “Liability Insurance, Self-Insurance, No-Fault Insurance and Workers Compensation (NGHP)” page."

Friday, September 25, 2009

CMS Updates Submission Process for WCMSAs

CMS has announced two changes for the WCMSA submission process:

2. Intent to provide a secure portal for submission of WCMSAs.
"Good news, over 85 responses were received to the "Survey for Workers' Compensation Medicare Set-Aside (WCMSA) Process." The results confirm entities who report workers' compensation settlements that contemplate future medical (including prescription drug) treatments support, overwhelming the availability of a secure Internet web-based portal or interface. Further, the vast majority of responders stated that they are capable of uploading and transmitting documentation in a PDF format into a secure Internet web based portal application.

Based on the results, CMS will be moving forward with its plan to make available a secure Internet web-based portal or interface for the WCMSA submission process."

NY Opens 1 Year Window for 9/11 Claims

NY Governor David A. Patterson has signed into law a bill that permits otherwise time-barred claims against NY municipalities arising out of terrorist activities that occurred on September 11, 2001.

The City of NY just released the 2009 Annual Report concerning the health consequences of the 9/11 attack. The report concludes:

"Results from large epidemiologic studies suggest that probable posttraumatic stress disorder (PTSD) is the most common WTC-related health condition among exposed adults. Probable PTSD means that individuals scored above a certain threshold when responding to a mental health screening questionnaire but have not undergone the psychiatric interview necessary to confirm the diagnosis.

I The risk for developing probable PTSD was higher among those who were:

• Caught in the dust cloud released by the buildings as they collapsed

• Injured as a result of the attacks

• Directly exposed to the events of 9/11, including proximity to the WTC site, witnessing horrific events and knowing someone who was killed or injured in the attacks

• Among rescue and recovery workers, working at the WTC site for a long time or doing tasks outside of their trained area of expertise.

I Several studies indicated that respiratory symptoms, sinus problems, asthma, and loss of lung function were found in people or reported by some who were exposed to WTC dust, including rescue and recovery workers, residents and evacuees. Other studies have suggested that risk of developing sarcoidosis (an inflammation that usually affects the lungs) was elevated in the first few years after the event. Many exposed adults were also diagnosed with or reported having heartburn, acid reflux or gastroesophageal reflux disease (GERD), often in conjunction with other respiratory or mental health symptoms. GERD is a common condition among the general population, however; further research is needed to understand the association between GERD, WTC exposure and other WTC-related health conditions.

I The risk for developing respiratory problems has been examined most thoroughly among rescue, recovery and clean-up workers, and was increased among those who:

• Arrived early at the WTC site • Worked at the WTC site for long periods of time.

I Few studies addressed the impact of WTC exposure on child and adolescent health, especially physical health.

I Whether there is a relationship between WTC exposure and other longer-term illnesses, including cancer, is unknown but clinicians, epidemiologists and other researchers are actively studying this. They also are studying the relationship between WTC exposure and mortality.

I At the time of the report’s publication last year, treatment for WTC-related conditions was available for exposed groups, including children and adolescents, in the NewYork City area."


For additional information on 9/11 Compensation click here.

Wednesday, September 16, 2009

Medical Costs Soar in the US $55.4 Billion Workers’ Compensation Business

Medical costs continue to soar as a cost in Workers’ Compensation insurance costs nationally. Despite the nations economic downturn a recent report issued by the National Academy of Social Insurance (NASI) reveals that medical spending increased 3.3%.

The costs of the workers’ compensation medical care nationally now represents 49% ($27.2 Billion) of the benefit package. Cash benefits grew a modest .8% over last year.

For about medical benefits and Workers’ Compensation click here.

Risk Assessments for Asbestos Present Difficulties

For decades asbestos has been known human carcinogen and major health hazard causally related to asbestosis, lung cancer and mesothelioma. It is still not banned in the United States. Recent efforts to provide statistics assessments of the hazard haven’t proven to be unsuccessful.

A study published in the September 2009 issue of The American Journal of Industrial Medicine concludes, None of the efforts to use statistical models to characterize relative cancer potencies for asbestos fiber types and sizes have been able to overcome limitations of the exposure data. Resulting uncertainties have been so great that these estimates should not be used to drive occupational and environmental health policy. The EPA has now rejected and discontinued work on its proposed methods for estimating potency factors. Future efforts will require new methods and more precise and reliable exposure assessments. However, while there may be genuine need for such work, a more pressing priority with regard to the six regulated forms of asbestos and other asbestiform fibers is to ban their production and use.”

Tuesday, September 15, 2009

The Urgent Need for Workers Compensation Flu Pandemic Planning

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization’s (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting from regulatory work disruptions to prevent the spread of disease maybe massive. While workers’ compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers’ compensation system to deliver benefits as promised may be seriously burdened.


There has been a global reaction to the 2008 influenza pandemic. On April 25, 2009, the WHO director-General Dr. Margaret Chen declared the H1N1 virus outbreak as a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow.


The United States has structured its response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permits the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows or the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waives penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President may issue an emergency declaration under The Stafford Act to co-ordinate emergency relief under State and Federal programs, ie. use and distribution of anti-viral medications.


The Federal government has sweeping powers under the PHS that could disrupt employment throughout the country. Recommendations for school closings will impact children and staff well beyond the approximate 700 facilities that were closed in the Spring of 2009 during the H1N1 initial outbreak. The Federal government under the PHS has authority to quarantine (interstate and border) and to isolate. An Executive Order (E.O. 13375, April 2005) enumerates the “quarantainable diseases.” Travel restrictions may be imposed to limit the spread of a communicable disease. Employees may not be permitted to board flights under either voluntary airline restrictions or through the Federally imposed “Do Not Board” lists.


These closings and restrictions have raised issues as to what programs, if any, will be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak. The workers’ compensation system could be requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions may curtail employment that will trigger the implementation of State workers’ compensation benefits. The employer and the workers’ compensation insurance carriers will be required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers’ compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.


Workers’ Compensation claims arising out of the influenza pandemic of 2009 will need to fit into the convoluted framework statutory acts and regulation. Reimbursement from the usual collateral third-party reimbursement sources may be restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation including The “Public Readiness and Emergency Preparedness Act" (PREP Act) limits liability of others under certain specific emergency circumstances.


The enormity of the Pandemic presents a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers’ Compensation programs have adapted to emergencies before including natural disasters and terrorist attacks. The urgency of the situation requires that the system be vaccinated now.


Friday, September 11, 2009

Breast Cancer Linked to Night Shift Work by Danish Compensation System




The Danish government has begun to pay compensation benefits to women who develop breast cancer after working night shifts and irregular work hours. So far approximately 40 women have received benefits according to BBC reports.


The Danish agency relied upon a finding of the International Agency for Research on Cancer (IARC) a unit of the the United Nation's World Health Organization (WHO) in concluding that night shift work was a probable cause of cancer.


The National Board of Industrial Injuries announced that, "Danish women with breast cancer who have worked night shift for usually 20-30 years and at least one night per week are encouraged to apply for compensation for their cancer disease."


Dr. Vincent Cogliano (photo) of the IARC said, "The level of evidence is really no different than it might be for an industrial chemical."

Thursday, September 10, 2009

CMS Schedules Town Hall Meeting to Discuss a Secure Internet Portal for Submissions of Proposed WCMSAs

On September 9, 2009 CMS has scheduled a "Town Hall" telephone conference call to discuss:

  1. Overview of CMS plans to make available a secure Internet web-based portal or interface for the WCMSA submission process for the various affected stakeholders.
  2. Question & Answer Session. Only questions regarding the ongoing implementation of a secure Internet web-based portal or interface for the WCMSA will be addressed. No policy or case specific questions will be accepted.

CMS Lists How to Avoid 10 Top WCMSA Errors

The Centers for Medicare and Medicaid Services has now posted the 10 top errors on Workers' Compensation Set Aside Agreement submissions and how to avoid them:

1. No medical records for the last two years of treatment

2. Claims payment history missing or undated

3. Response to development requests incomplete

4. Calculation method stated as fee schedule when state does not have a fee schedule

5. Calculation method not stated for the medical set-aside

6. Total settlement amount missing or unclear

7. No rated age statement from submitter confirming that all rated ages obtained on the claimant have been included

8. Payout amount not used in annuity situations

9. Proposed medical set-aside amount is missing, unclear, or inconsistent with other information

10. Proposed prescription drug set-aside amount is missing, unclear, or inconsistent with other information


Click here for the solutions.

Congressional Action on Workers’ Compensation

From coast to coast, the patchwork of state workers’ compensation systems continues to be under constant scrutiny for change. The problems seem global in characteristic as the frustrations continue to rise. The fate of the entire system may result in the effort to enact or defeat legislation to embrace a new national commission on workers’ compensation.

The States universally enacted Workers’ Compensation in 1911 in an effort to replace civil litigation with an administrative system. The approach was to provide a remedial system to injured workers in a summary manner while providing a cost effective approach for employers. Despite the efforts to reduce benefits and limit access States are struggling to maintain the system in one fashion or another. Rumors are spreading that
New York, a former industrial jurisdiction, may join the list of radically modifying their system.

The once touted as a “no fault” system, the nation’s workers’ compensation has been besieged by efforts to assert more restrictive requirements for benefits. Medical delivery has stagnated in a complex world of etiology and evidential proof of occupational claims. The cost of soaring medical care, once shifted easily to collateral health insurance companies and the Social Security system, has been met with convoluted reimbursement efforts. Large corporations and public entities that in the past were able to provide an additional stream of revenue to injured workers are now rapidly drying up and or become non-existent under bankruptcy laws. State governments, that maintain the administrative system, are now facing a monumental shortage is revenue and are closing down operations and converting some for criminal and economic sanctions to merely benefit the general state revenues. The few remaining second injury funds have become insolvent and the future remains bleak as the premiums committed to finance these agencies and programs become depleted.

On January 22, 2009,
Representative Joe Baca, a Democrat from California, introduced legislation (HR635) to establish a second National Commission on State Workers' Compensation Laws [Commission]. The first Commission was established under the Nixon administration in accordance with the Occupational Safety and Health Act. The new legislation that is now supported by representatives of injured workers lacks co-sponsors. Opposing the legislation is a long line of Industry based employers including the Americans Manufacturing Association and the National Chamber of Commerce.

John Burton, the former chair of the 1971 Commission, in a recent
interview, commented that many of the present systems do not even comply with threshold recommendations of the original Commission and that many of the present programs face some serious challenges.

Patrice Woeppel, Ed.D., author of
Depraved Indifference the Workers' Compensation System, has called for a single payer medical system to embrace both work and non-worker related injuries. By allowing the employer and insurance carrier to control the medical care she indicates, results in "restricting treatment to the cursorily palliative" or delay and denial of treatment to the injured worker. Additionally medical plan administrative costs of duplicative and wasteful.

As the national health care debate continues and the final legislation unfolds, the workers’ compensation medical delivery issues and wage replacements for temporary and permanent disability may become incorporated into direct or ancillary legislation. A second Commission, in one form or another, aimed at nationalizing the workers compensation system, may indeed become a reality.

NIH Defense Asbestos Expert Pleads Guilty to Lying

A physician who was working full time in a senior position with the National Institutes of Health (NIH) pleaded guilty to lying about moonlighting as an expert in litigation at $425.00 per hour. Dr. Jack Snyder pleaded guilty recently and was convicted of a felony.