Class Action certification is being sought in a claim against AIG brought by NCCI Holdings Inc., Liberty Mutual and Travelers Insurance for underreporting of workers ' compensation premiums. See AIG tries to block workers comp competitors' class action.
Saturday, October 9, 2010
Class Action Certification Sought in NCCI et al v AIG Premium Case
Class Action certification is being sought in a claim against AIG brought by NCCI Holdings Inc., Liberty Mutual and Travelers Insurance for underreporting of workers ' compensation premiums. See AIG tries to block workers comp competitors' class action.
Friday, October 1, 2010
CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim
A Federal District Court in Alabama has declared that the Centers for Medicare and Medicare Services (CMS) is limited to a 6 year statute of limitations in asserting as recovery / reimbursement claims under the Medicare Secondary Payer Act (MSP).
The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.
"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."
The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."
As to the Attorney Defendants, the Court held was based on contract law.
"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."
"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."
The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.
The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.
United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.
The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.
"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."
The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."
As to the Attorney Defendants, the Court held was based on contract law.
"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."
"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."
The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.
The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.
United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct
The 11th Circuit Court of Appeals has held that Medicare is not entitled to reimbursement under the Medicare Secondary Payer Act (MSP) when the the surviving children's allocated share of proceed is the result of a wrongful death claim. The Court reasoned that under Florida law, any claim of the estate is separate and distinct from the claim of a survivor. Under Florida law, child's loss of parental companionship claim is a property right belonging to the child.
Medicare through the Secretary of Health and Human Services (HHS) did not participate in the Florida probate action. HHS had refused to recognize the validity of that decision of allocation of the Florida Probate action.
"Counsel for the survivors and the estate acted sensibly, in a cost-effective manner. The nursing home neglect claim was settled for the full value of the available insurance. Clearly, if the language of the field manual applied, in practice, it would lead to an absurd Catch-22 result. Forcing counsel to file a lawsuit would incur additional costs, further diminishing the already paltry sum available for settlement. This flies in the face of judicial and public policy.
"The Secretary's position would have a chilling effect on settlement. The Secretary's position compels plaintiffs to force their tort claims to trial, burdening the court system. It is a financial disincentive to accept otherwise reasonable settlement offers. It would allow tortfeasors to escape responsibility.
"Without citing any statutory authority, regulatory authority, or case law authority, the Secretary and the district court's reliance upon language in a field manual is unpersuasive. The Secretary is not entitled to any share of the Burke surviving children's loss of parental companionship claims.
The decision may have a sweeping national impact on workers' compensation dependency claims, as they are also separate and distinct actions against an employer.
Bradley v, Sebelius, 621 F. 3d 1330, 2010 WL 3769132 (C.A. 11 Fla. 2010)
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
Related Articles:
CMS/MSP Statute Tolling Case Set for Hearing by Federal Court
Thursday, September 30, 2010
New Biomarkers Discovered for Mesothelioma May Lead to Early Detection
This technology would enable better clinical diagnosis at an earlier stage and may provide insight into new therapeutic targets, said Rachel Ostroff, Ph.D., clinical research director of Somalogic Inc.
“Currently these cancers are detected at an advanced stage, where the possibility of cure is minimal,” said Ostroff. “Detection of these aggressive cancers at an earlier stage would identify patients for early treatment, which may improve their survival and quality of life.”
Ostroff presented results of this ongoing study at the Fourth AACR International Conference on Molecular Diagnostics in Cancer Therapeutic Development.
Discovered about 20 years ago, aptamers are nucleic acid molecules that bind to specific proteins. SomaLogic has developed the next generation of aptamers, SOMAmers (Slow Off-rate Modified Aptamers), which have superior affinity and specificity. SOMAmers enable a highly multiplexed proteomic platform used for simultaneous identification and quantification of target proteins in complex biological samples.
The goal of this study was to determine if this proteomics technology could identify blood-based biomarkers for pancreatic cancer or mesothelioma in people diagnosed, but not yet treated, for cancer.
Participants in the control group had symptoms that resembled these cancers, but were benign (i.e. pancreatitis or lung fibrosis).
Ostroff and colleagues tested blood from participants to discover the biomarkers specific to those with cancer, which would then be used to identify these diseases at an early stage, where the potential for effective treatment is much higher than in disease that has progressed.
For both forms of cancer, the researchers discovered biomarkers and developed a signature with high accuracy for detection of each form of cancer. Equally important, they found high specificity, meaning few people without disease will be incorrectly diagnosed and thus avoid unnecessary tests or treatments.
“Validation studies are underway, which we hope will lead to the development of diagnostic tests that hold clinical benefits for patients,” Ostroff said.
Pancreatic cancer is the fourth leading cause of cancer-related death in the United States. Mesothelioma is an asbestos-related pulmonary cancer that causes an estimated 15,000 to 20,000 deaths per year worldwide.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered asbestos related disease.
Tuesday, September 28, 2010
Atlantic Mutual Insurance Co Placed into Rehabilitation
The NJ Division of Workers' Compensation has responded to an Order of Rehabilitation of Atlantic Mutual Insurance Company and Centennial Insurance Company entered by the New York Supreme Court entered on September 14, 2010. The NJ Division of Workers' Compensation has directed that 120 active cases now pending are stayed until further notice.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
Related articles
- American Mutual Ordered into Liquidation (workers-compesation.blogspot.com)
- Obama Care for All (workers-compensation.blogspot.com)
- Vermont Universal Health Care to Embrace Workers Compensation (workers-compensation.blogspot.com)
- Employer Fraud is Alive and Well (workers-compensation.blogspot.com)
- Washington Workers' Compensation Reform (workers-compensation.blogspot.com)
- Memo from Director/Chief Judge Calderone - NJ DWC (http://lwd.dol.state.nj.us/)
Sunday, September 19, 2010
US Workers Compensation Centennial Commission
This 10-minute video was created for the National History Day contest by students at Nimitz High School in Houston, Texas.
The Workers’ Compensation Centennial Commission was formed to celebrate the first constitutional workers’ compensation law in the United States which was signed on May 3, 1911 and took full effect on Sept. 1, 1911. It was a recognition of society’s responsibility to the workplace, establishing workers compensation as the first form of social insurance in American history. Today, workers’ compensation stands as a pillar within our economic system that benefits all Americans.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
Related Articles
Campaign for Centennial Workers Compensation Postage Stamp
The Trend to Exclude Distracted Driving From Workers' Compensation Coverage
Citing cell phone usage while driving, the Federal Government is making a major initiative to get workers off cell phone while at work. U.S. Transportation Secretary Ray LaHood today announced the agenda for the second national Distracted Driving Summit to be held on September 21st , 2010 in Washington, DC.
Building on the success of last year’s summit, Secretary LaHood will convene leading transportation officials, safety advocates, law enforcement, industry representatives, researchers and victims affected by distraction-related crashes to address challenges and identify opportunities for national anti-distracted driving efforts. U.S. Labor Secretary Hilda Solis, U.S. Senator Jay Rockefeller and U.S. Senator Amy Klobuchar will also speak at the summit.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
“Thousands of people are killed or injured every year in accidents caused by distracted drivers,” said Secretary LaHood. “One year after our first national Distracted Driving Summit, we will reconvene to take stock of our progress and reassess the challenges and opportunities that lie ahead. I look forward to hearing insights from our distinguished panelists and guests, and know that by working together, we will save lives.”
The 2010 Distracted Driving Summit will be live webcast at www.distraction.gov, enabling the participation of people around the country. US employers are urged to set policies to prohibit the use of cell phones at work. "Use a variety of organizational channels to communicate with employees the company's commitment to safety and health and specifically to the nonuse of cell phones and texting. Make it clear to your employees that the expectation is that they will NOT talk or text on their cell phones while driving on company time or in company vehicles. Have employees sign a contract that says they will not violate the organization’s ban on texting and driving."
Many State Laws already ban the use of cell phones while driving. Sample legislation to be used as a starting point for states crafting new laws to prohibit texting while driving has been encouraged.
Making the workplace safer is a major purpose of workers' compensation law. Public policy will certainly support the effort to end distracted driving. The trend to exclude coverage for distracted driving is a signifiant move in the right direction to help workers steer clear of accidents.
Related Articles
- Working While Texting: The New Workers Compensation Defense
- Are Driving Distractions Within the Course of the Employment?
- Cell Phone Use and Occupational Cancer: The Jury is Still Out
- Employee Cell Chat Results in $5.2 Million Payment to Widow by Employer
- LaHood accuses lobbying campaign of undermining efforts to fight distracted driving (taragana.com)
- Lobbyists Try to Reframe Distracted Driving Issue (bits.blogs.nytimes.com)
- No Matter Who is on the Phone, Cell Phones are a Distraction in the Car (psychologytoday.com)
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