Copyright

(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Saturday, December 27, 2008

We are moving....January 1, 2009

JON L GELMAN LLC
Attorney at Law
1700 State Route 23 North Suite 120
Wayne, NJ 07470-7537
Phone:(973) 696-7900
Fax: (973) 696-7988
e-mail: jon@gelmans.com
Internet: http://www.gelmans.com/

DIRECTIONS TO OUR OFFICE
Directions by Google Maps – Click Here

http://maps.google.com/maps/ms?ie=UTF8&hl=en&msa=0&msid=117809746258182341884.00045ee92aef6c660fa07&ll=40.942256,-74.27011&spn=0.024086,0.038452&z=15

FROM ROUTE 23 NORTHBOUND:
At RT 23/I-80/RT 46 junction proceed north on RT 23 past two traffic lights (3.5) miles. Immediately after the 2nd traffic light, turn right into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

FROM ROUTE 23 SOUTHBOUND:
1. Proceed past Ratzer Road exit in Wayne. 2. Proceed (0.6 miles south) past Fuddruckers on right and turn right to make a U-turn to go northbound. 3. Stay in right lane and cross straight over Rt 23 into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

FROM ROUTE 46 WESTBOUND:
1 . Exit Route 46 at Route 23 North exit (bear right) just (0.5 miles) past the Fountains of Wayne on right.
2. Proceed north on RT 23 past two traffic lights (3.5) miles. Immediately after the 2nd traffic light, turn right into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

FROM ROUTE 46 EASTBOUND:
Exit just past Willowbrook Mall in Wayne & bear left for State Hwy 23 N toward Butler (0.8 mile). Merge onto RT-23 N (0.8 mile). Then follow directions FROM ROUTE 23 Northbound above.

FROM ROUTE 80 WESTBOUND: EXIT #53, for State Hwy 23 N toward Butler (0.8 mile). Merge onto RT-23 N (0.8 mile). Then follow directions FROM ROUTE 46 Westbound above.

FROM ROUTE 80 EASTBOUND:
Take Exit 54 for Minnisink Rd toward Totowa/Little Falls. Turn LEFT at Minnisink Road (signs for Totowa) (0.1 miles). Turn left at Vreeland Ave (459 feet). Turn left to merge onto I-80 W (0.8 miles). The follow directions FROM ROUTE 80 Westbound above.

FROM ROUTE 287 NORTHBOUND or SOUTHBOUND:
Take Exit 48 toward Lincoln Park (0.2 miles). Turn left at Main Rd/US-202 (1.6 miles). Turn left at Main Rd/US-202/White Hall Rd. Continue to follow Main Rd (1.8 miles). Slight right at Boonton Turnpike/US-202. Continue to follow US-202 (2.5 miles). Take the ramp onto RT-23/US-202 N (2.1 miles). Slight right into 1700 Route 23 North (Oak Hill Park) (495 ft), bear left to 1700 building.

FROM GARDEN STATE PARKWAY SOUTHBOUND:
Take exit 159 to merge onto I-80 W. Then follow directions FROM ROUTE 80 Westbound above.

FROM GARDEN STATE PARKWAY NORTHBOUND:
Take exit 153 on the Left onto Rt 3 WEST, which will merge onto RT 46 West. Then follow directions FROM ROUTE 46 Westbound above.



Tuesday, December 23, 2008

CMS Regional Centers for Workers' Compensation Matters

CMS announces publishes State contact list for Workers'  Compensation matters. I its guide CMS has directed contact to 6 regional centers for all states and territories.

The contact list is now available on line.



Seeking a Waiver of CMS/MSP Overpayment Request

A formal process exits to obtain a waiver of an Overpayment Recovery request from The Center for Medicare and Medicaid Services [CMS]. If SSA advises you or your client that it has made an overpayment, ie. Medicare Secondary Payer Act [MSP] recovery request, then a waiver request maybe made. This is not to be confused with a Request for Reconsideration which should be used where the amount is disputed.

If you or your client agrees that the number is correct and the beneficiary is unable to make repayment, then a Request for Waiver of Overpayment Recovery should be filed. The form is 8 pages in length and requires the submission of a reason for the request including no fault of the beneficiary or unfairness of the request.

A financial statement is required to be submitted to CMS which requests information concerning: current rent; mortgage payments; pay stubs; tax returns; utility, medical, charge cards and insurance bills; cancelled checks; spouse and dependent(s) financial information.



Friday, December 19, 2008

CMS Publishes WCMSA Operating Rules

The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals. CMS cited that distribution of this material may reduce review time by the agency.

The Operating Rules, an 11 page document, highlights the procedures to be utilized by CMS. They instruct CMS on how to respond to telephone quires including specific instructions such as, "Do not give recommended amounts or expected completion dates." The Rules also instruct CMS contractor to consider the Total Settlement Amount (TSA) if the claimant has multiple workers' compensation cases and suggest one Recommended MSA (RMSA). Therefore "apportioning" multiple claims into a series of cases below the threshold level will not avoid CMS scrutiny. Also legal malpractice awards based on the mishandling of the workers' compensation claims are deemed not to be payments of compensation.

The Operating Rules were previously made available under a Freedom of Information Request in October 2008. The Operating Rules have been posted in redacted form and will be updated periodically by CMS.



Thursday, December 18, 2008

AIG: going, going,......?

AIG, a major workers' compensation carrier and reinsurer, is now facing another major economic loss amounting to $30 Billion, which may critically impact its ability to remain viable. In an exclusive report, Bloomberg, has reported that AIG, previously rescued by the Federal government in a $60 Billion infusion of dollars to offset troubled credit default swaps, is now facing additional losses.

Bloomberg reported, "...Wider losses may cast new doubt on whether the federal funds will be enough to prop up AIG, the biggest U.S. insurer by assets. The U.S. package almost doubled from the $85 billion approved in September to save the company from bankruptcy. Previous miscalculations about the swaps contributed to the ouster of Chief Executive Officer Robert Willumstad and his predecessor, Martin Sullivan. "

The huge insurance carrier, AIG, is considered to be a backbone of the workers' compensation insurance market and its financial instability, including insolvency, could critically shake the national patchwork of State programs. Earlier this year several State's issued statements that their insolvency funds would be a mechanism for relief should AIG fail. Declining State resources may place that solution also in jeopardy.



Wednesday, December 17, 2008

NJ Supreme Court Holds Electronic Insurance Policy Cancellations Invalid

In a sweeping, decision that may have impact on thousands of cases, the NJ Supreme ruled that an electronic cancellations of a workers’ compensation policies was not in compliance with the statute.

The Court ruled that the NJ Compensation, Rating and Insurance Bureau (CRIB) established a protocol called an FTP transfer to cancel policies by insurance carriers that was not in compliance with the law. NJ CRIB, the rate setting agency in NJ for workers’ compensation premiums, has been under investigative attack and legislative review. Recent legislation increased the governance to include some non-insurance affiliated members.

The NJ Supreme Court held, “…[that a] carrier does not satisfy N.J.S.A. 34:15-81 merely by transmitting electronic notice of cancellation of coverage to the Commissioner by way of the FTP. The statute clearly requires that to effectuate the cancellation, carrier also must file a statement certified by an employee that the required notice was provided to the insured.”

“In short, the Appellate Division correctly concluded that the use of the FTP system to transmit data about policy cancellations, without any accompanying certification, cannot be effective in light of the clear and unambiguous demands of N.J.S.A. 34:15-81(b).”

“… we have concluded that Sroczynski and any other party who previously raised the notice issue should be granted relief from the improper cancellations but that those cancellations that were never challenged should stand because the policyholders waived their right to do so.”

Walter Sroczynski v. John Milek (A-68/77-07) December 17, 2008

Tuesday, December 16, 2008

US Supreme Court to Review Manville Asbestos Bankruptcy Order

The US Supreme Court has decided to review a decision interpreting a 1986 Bankruptcy confirmation plan order. The order formed the basis of a settlement by Travelers Insurance Company to resolve claims against it for conspiracy in concealing information about the dangers of asbestos.

In 1986, the U.S. Bankruptcy Court for the Southern District of New York (Lifland,J.) confirmed a landmark plan of reorganization for Johns¬-Manville Corporation that channeled hundreds of thousands of asbestos-related personal injury claims into a special trust fund for the benefit of injured workers and their families. The linchpin of this reorganization was the contribution of tens of millions of dollars Petitioners and other insurers into a trust for payment of asbestos claims in exchange for protection from future claims against the insurers, all of which was intended to provide Petitioners with full and final protection from suits relating to, arising from or in connection with the Petitioners' insurance relationship with Johns¬Manville. The Manville confirmation order was affirmed in a final judgment rendered by the Second Circuit in 1988.

The confirmation order in Manville was subsequently ratified by the U.S. Congress (see 11 U.S.C. 524(h)) and used as a model for Section 524(g) of the Bankruptcy Code. In the decades following the entry of the final judgment affirming the Manville plan of reorganization, and in reliance on the protections enacted by Congress, of billions of dollars have been paid into "524(g) trusts" for the benefit of hundreds of thousands of asbestos claimants. In 2002, Petitioners sought to enforce the court's orders when certain asbestos claimants tried to evade the confirmation order by suing Travelers directly in so-called "direct actions." The suits were enjoined by the bankruptcy court that fashioned the Manville plan of reorganization, which held that they were proscribed by the 1986 confirmation order. The bankruptcy court's decision was affirmed by the District Court, but in February over two decades after the original orders became final, a different panel of the Second Circuit held that the bankruptcy court lacked authority in 1986 to enter confirmation order that extended beyond the "res" of the debtor's estate, i.e., insurance policy proceeds.

The question presented, therefore, is: Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the "res" of a debtor's estate, despite this Court's recent ruling that "[t]he Framers would have understood that laws 'on the subject of Bankruptcies' included laws providing, in certain respects, for more than simple adjudications of rights in the res," Central Virginia Community College v. Katz, 546 U.S. 356, 370 (2006), and whether the court of appeals compounded error by:

(a) failing to apply as written a federal statute (11 USC §§ 524(g) and (h)), by limiting the scope of relief in a manner that is contrary to the express terms andpurposes of that statute;

(b) failing to give effect to the Supremacy Clause and holdings of this Court that federal bankruptcy relief cannot be overridden by rights alleged to have beencreated under state law; and

(c) failing to respect important principles of finality and repose, and the express provisions of § 524(g), by failing to approve a federal court's enforcement of a confirmation order that was affirmed over two decades ago on direct appeal.

08-295 TRAVELERS INDEMNITY CO. V. BAILEY, DECISION BELOW:517 F.3d 52

Saturday, December 13, 2008

Federal Appeals Court Upholds Constitutional Challenge Against CMS Memo

In a significant decision the 10th Circuit Federal Court of Appeals ruled that a constitutional challenge against the CMS 2005 CMS memo on future medical benefits in workers' compensation claims may proceed. The Court reversed the decision of the trial court and remanded the case for further proceedings.

"This suit arose after CMS clearly rejected such use of § 411.47, declaring that it applies only to medical expenses incurred before the workers' compensation settlement. In a memorandum issued on July 11, 2005 (the 2005 Memo), it said.

Q11. Compromising of Future Medical Expenses-Does CMS compromise or reduce future medical expenses related to a [workers' compensation] injury?

A11. No. Some submitters have argued that 42 C.F.R. § 411.47 justifies reduction to the amount [set aside for Medicare in a workers' compensation settlement]. The compromise language in this regulation only addresses conditional (past) Medicare payments. The CMS does not allow the compromise of future medical expenses related to a [workers' compensation] injury."
The Court ruled:

"In light of this precedent, we conclude that Protocols has suffered an actual injury. It admits that it has arranged settlements that are contrary to what CMS has declared to be required. As a result, CMS may sometime in the future demand that Protocols reimburse Medicare for Protocols' portion of settlement proceeds. And according to affidavits submitted by Protocols, this potential liability has a present impact on its business-that is, the contingent liability has created an actual and imminent injury."


07-1175 - Protocols, LLC v. Leavitt (12/11/2008)

Parent Corporation Has 3rd Party Lien Rights

A NJ Appellate Court ruled that a workers' compensation carrier is permitted to enforce its right reimbursement against the third party recovery from a parent company of the employer.  Liberty Mutual was permitted to "pierce the corporate veil." The Court declared, "...To do otherwise would be to condone a situation in which an injured employee collects workers' compensation benefits and thereafter receives monetary damages in a third-party liability action with no obligation to reimburse the workers' compensation insurer."

Washington Supreme Court Restricts Asbestos Claims

The Washington Supreme Court has taken a step back in time and rendered two significant decisions limiting he rights of asbestos victims to gain recovery. The Court ruled that if a company did not make asbestos products or manufacture them there was no duty to war. Speaking for the minority, Justice Debra Stephens wrote, "no duty to warn of a serious hazard it knew or should have known was involved in the use of its product ignores logic, common sense, and justice." 

Decisions
Dec. 11, 200880251-3-Braaten v. Saberhagen Holdings
Dec. 11, 200880251-3-Braaten v. Saberhagen Holdings (Dissent)
ec. 11, 200880076-6-Simonetta v. Viad Corp.
Dec. 11, 200880076-6-Simonetta v. Viad Corp. (Dissent)

Friday, December 12, 2008

Asbestos Continues to Reduce Potential Years of Life


Asbestos exposure continues to have high rates of death in the US. Potential years of lost life continue to be at epidemic proportions. The US CDC reports that premature mortality as a result of asbestos related disease continues to be at all time highs. Asbestos is still not banned in the US

Thursday, December 11, 2008

CMS to Mandate Use of WCIO Reporting Codes

In a telephone conference on December 12, 2008, CMS indicated that it will require the Workers Compensation Insurance Organizations reporting codes under the mandatory reporting procedures.




An explanation of the codes is available at on the WICO website.

Medicare Secondary Payer Mandatory Reporting

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173), adds new mandatory reporting requirements for group health plan (GHP) arrangements and for liability insurance (including self-insurance), no-fault insurance, and workers' compensation.  See 42 U.S.C. 1395y(b)(7) & (8). 

Medical Costs Soar in Workers' Compensation


The cost of medical care has increased tremendously according to a recently issued  report. The NCCI (National Council on Compensation Insurance Inc.) reports an increase in medical costs from 40% in the early 1980s to almost 60% currently.


NCCI reports that the increase appears to be national, "....Furthermore, although there are differences in the medical share by state, the change in the relative mix of states has had very little impact on the estimated countrywide share of medical and indemnity benefits."


The national workers' compensation medical delivery system has now become a focus of attention in light of the prospects of an overhaul of national health care system as medical costs continue to put American businesses at a economic disadvantage with foreign competitors. James Kvaal, in his article, "The Economic Imperative for Health Reform," highlights that "...ever rising medical costs are threatening to drive an unsustainable explosion in the national debt." Higher insurance premiums result in lower wages or lack of medical coverage all together and the loss of preventive care.


The costly and inadequate workers' compensation medical delivery system provides a fragmented approach to medical care. The system's focus should treat current medical conditions and provide for preventive care. The administrative costs savings in providing global coverage will translate into reduced delivery costs and a healthier work force. Some of the extra savings could be well spent on much needed medical research to avoid the need for costly medical care.

Friday, December 5, 2008

Putting Workers First - A Proposed Agenda for the Obama Administration


The Center for American Progress will host a program  on Tuesday, December 8, 2008 to discuss how the Obama Administration may immediately improve upon the Bush's administration's poor track record for the ordinary American worker.

9:00 - 10:30 a.m.

Panel I: Enforcing Change: Strategies for the Obama Administration to Enforce Workers' Rights at the Department of Labor
Jordan Barab, Senior Labor Policy Advisor, Committee on Education and Labor, U.S. House of Representatives
Kim Bobo, Founder and Executive Director, Interfaith Worker Justice 
Thomas E. Perez, Secretary, Maryland Department of Labor, Licensing and Regulation 
Catherine K. Ruckelshaus, Litigation Director, National Employment Law Project
Karla Walter, Policy Analyst, American Worker Project, Center for American Progress Action Fund

Moderated by:
David Madland, Director, American Worker Project, Center for American Progress Action Fund

10:30 - 11:00 a.m.
Keynote Address:
Governor Jon Corzine (D-NJ)

11:00 - 12:00
Panel II: Making Federal Contracting Work for the United States
Scott Amey, General Counsel, Project on Government Oversight
Margaret Daum, Counsel, House Oversight and Government Reform Committee
Richard C. Loeb, University of Baltimore School of Law
David Madland, Director, American Worker Project, Center for American Progress Action Fund

Moderated by:
Scott Lilly, Senior Fellow, Center for American Progress Action Fund

Dry Cleaning Agent 1-BP Causing Neurological Illness


The Centers for Disease Control (CDC) has reported that 1-Bromopropane (1-BP) (n-propyl bromide),  a solvent increasingly used as a substitute for ozone-depleting chloro-fluorocarbons and similar regulated compounds, has been reported to cause neurological illness. 1-BP is used in vapor and immersion degreasing operations and other manufacturing processes, and as a solvent in industries using aerosol-applied adhesives.

Two cases of illness occurring in New Jersey and Pennsylvania have been reported, In NJ a worker in a cleaning facility, following the use of 1-BP, reported "...unusual fatigue and headaches and developed arthralgias, visual disturbances (difficulty focusing), paresthesias, and muscular twitching."

NIOSH had previously reported that some workers developed adverse problems in use of this product. In 2006 it made suggestions to reduce exposure.

The CDC has made the following recommendation, "....Clinicians and public health officials should be alert to potential adverse health effects from exposures to 1-BP in industries where such use might increase, such as the dry cleaning industry, and in workplaces where 1-BP use might be more established. A thorough occupational history always should be part of the clinical evaluation of persons who have unexplained or onset of nonspecific neurologic symptoms. Exposure to electronics cleaning solvents or dry cleaning solvents should prompt a more through inquiry concerning exposure to 1-BP. In the evaluation of a worker with occupational exposure to 1-BP and neurologic abnormalities, diagnosis of 1-BP poisoning is suggested by an elevated urinary or serum bromide concentration and a negative serum anion gap. Findings of potential 1-BP poisoning in a potentially exposed worker should prompt removal of the worker from the exposure while an evaluation of workplace exposures is conducted by a qualified professional"




Wednesday, November 26, 2008

A Bailout for Workers’ Compensation

The issues facing the present economic downturn are not necessarily the same that existed  during the great depression and therefore the outcome may not be the same. The US workers' compensation system, a patchwork of State programs, is seriously being challenged during the present tough economic times. The past does identify a pattern that may require similar solutions. 

 It has been reported that the US government is contributing vast sums to bring the economy out of the ditch. "In the last year, the government has assumed about $7.8 trillion in direct and indirect financial obligations. That is equal to about half the size of the nation’s entire economy and far eclipses the $700 billion that Congress authorized for the Treasury’s financial rescue plan."

Workers’ compensation is not necessarily an anti-cyclical market. It is a political entrenched program. The present economic crisis will change the social and economic fabric of the country. "....the most troublesome unknowns are how the maze of protections for investors and consumers will change economic and political behavior in the future." The NY Times reported that levels of unemployment may reach 10%, a number used to define a depression.

During The Great Depression the US workers’ compensation system had an additional unique challenge confronting it. Silicosis claims were challenging Industry with uncertain economic outcomes. The insurance industry rushed to the rescue by advocating that silicosis and other occupational diseases be brought within the umbrella of the workers’ compensation system.

Activity soared within the workers’ compensation arena. The pace continued through the pre and post World War 2 years as the legacy of disease and death continued. Asbestos claims and other toxic tort claims continued the spiral. When workers’ compensation was unable to fully compensate the victims, the activity switched to the liability arena and claims proliferated and activity soared. Insurance exhaustion, corporate bankruptcy, an aging workforce, lack of manufacturing in the US and Federal Multi-District litigation. soon lead to a decline litigation activity.

Confronting the present workers’ compensation programs are the residual issues generated by  the expansion of occupational disease litigation program of the 1930’s. Cost shifting from workers’ compensation to other programs has resulted in workers’ compensation system becoming a collection agency and has resulted in bureaucratic stagnation. Occupational disease claims created major cost shifting of medical costs to other systems including: temporary disability benefits, major medical and Medicare and Medicaid, disability pension and Social Security.

 In the 1930’s the Federal government though the Department of Labor stepped in to save the system. David Rosner and Gerald Markowitz in their volume, Deadly Dust, point out that without national standards and a uniform approach, the 1930s' system system would not survived that moment in time.

The economic factors of The Great Depression now hover  over the present workers’ compensation system. The Federal Government now needs to intervene and bail out the State systems and rethink the medical delivery system that has generated tension in medical and reimbursement programs.

Tuesday, November 25, 2008

AAJ Publishes Report on Insurance Companies

The American Association for Justice (AAJ) has published a report, "Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse."


"The U.S. insurance industry has trillions of dollars in assets, enjoys average profits of over $30 billion a year, and pays its CEOs more than any other industry. But insurance companies still engage in dirty tricks and unethical behavior to boost their bottom line even further."


The repoort describes methods that it alleges that insurance companies utilize to make money at the expense of consumers.
The tactics insurance companies use against consumers include:

Denying Claims: Some of the nation’s biggest insurance companies – Allstate, AIG, and State Farm among others – have systematically denied valid claims in an attempt to boost their bottom lines. These companies have rewarded employees who successfully denied claims, replaced employees who would not, and when all else failed, engaged in outright fraud to avoid paying claims.

Delaying until Death: Many insurance companies routinely delay claims, even going as far as to lock paperwork in safes, knowing full well that many policyholders will simply give up. In the words of one regulator, “the bottom line is that insurance companies make money when they don’t pay claims… They’ll do anything to avoid paying, because if they wait long enough, they know the policyholders will die.”

Confusing Consumers: Insurance contracts are some of the densest and incomprehensible contracts a consumer is ever likely to see. More than half of all states have enacted “plain English” laws for consumer contracts, yet many Americans still do not fully understand the risks they are subject to.

Discriminating By Credit Score: Insurance companies are increasingly using credit reports to dictate the premiums you pay, or whether you can even get insurance in the first place. The practice penalizes senior citizens with little credit, those who responsibly pay bills every month with cash or check, or those who have suffered financial crisis through no fault of their own.

Abandoning the Sick: Health insurers looking to cut costs have taken to retroactively canceling, or rescinding, the policies of people whose conditions have become expensive to treat. Some insurance companies have even offered bonuses to employees who meet “cancellation goals” – cancer patients in the middle of chemotherapy have even been targeted.

Canceling for a Call: Many people are rightly reluctant to make small claims on their home insurance for fear their insurance company will raise their premiums. But few realize that insurance companies often refuse to renew a policy just for making a phone call. Often an insurance company will count an inquiry over the phone as the same as a claim, and then they will do everything in their power to drop you.

CMS Announces Future Tele-Conferences for MSP Reporting

November 17, 2008 Updates - Future Town Hall Teleconference Meeting Dates

January 22, 2009 - Liability (including Self-Insurance), No-Fault Insurance and Workers' Compensation

January 28, 2009 - Liability (including Self-Insurance), No-Fault Insurance and Workers' Compensation

February 25, 2009 - Liability (including Self-Insurance), No-Fault Insurance and Workers' Compensation

March 25, 2009 - Liability (including Self-Insurance), No-Fault Insurance and Workers' Compensation

April 22, 2009 - Liability (including Self-Insurance), No-Fault Insurance and Workers' Compensation

CMS Publishes Intrim Record Layout for Mandatory Reporting

CMS (The Centers for Medicare and Medicaid Services) has published a proposed format for reporting data under the Medicare Secondary Payer Act. Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173) madates reporting where, "...the settlement, judgment, award or other payment date is July 1, 2009 or subsequent and claims on which ongoing responsibility for medical payments exists as of July 1, 2009, regardless of the date of an initial acceptance of payment responsibility."

NJ Senate Passes WC Coverage Legislation

The NJ Senate passed (40-0) a substituted bill requiring the investigation of cases where employers fail to obtain workers' compensation coverage. The substituted bill adopts the suggestions of Governor Corzine who had proposed some changes in his October 2008 condititonal veto message.

The legislation requires the Insurance Fraud Prosecutor (IFP) to establish a liaison with the NJ Department of Labor and Workplace Development and authorizes the investigation of cases involving failure to obtain Workers' Compensation coverage.

Wednesday, November 19, 2008

CMS Announces Intention to Clarify MSP Recovery Language

CMS has announced it intends to clarify the language in recovery scenarios where occupational exposures occurred prior to the effective date of the Medicare Secondary Payer Act.

Barbara Wright of CMS said at a recent town hall meeting,...
"If all exposure (peaks) before 12/5/80, then it is CMS policy that it will not assert a recovery claim with respect to any liability settlement. And that can depend on -- again I’ll use asbestos as the example. Let’s say that you’re suing five different entities. I’ve seen situations where three of the entities -- all exposure connected with them -- did in fact end before 12/5/80 wherefore at the last one there was some exposure after 12/5/80. We are looking at language that could potentially eliminate reporting when it’s clear that the exposure ended before 12/5/80. "


As CMS ramps up for mandatory insurance carrier reporting, additional town hall conferences have been scheduled.

National Health Leaps Ahead on Agenda


It should no surprise to anyone that the Obama Transition is already targeting national health care as a first year agenda item. With Senator Edward Kennedy and the Clintons anticipated to be major participants in the new Obama Administration, the health care issue has now leaped to forefront.

Senator Kennedy's return to the Senate this week coincided with his announcement of the formation of 3 working groups to assist in the development of heath care legislation. He announced the following participants to his team: Sen. Hillary Rodham Clinton (D-N.Y.); Sen.Barbara Mikulski (D-Md.) and Tom Harkin (D-Iowa). They planned a meeting for today in an effort to plan out the immediate effort. This signals that health care reform will emanate from the Congress and not The White House.

Insurance company reaction was immediate. The carriers offered full medical coverage for pre-existing coverage providing that there was a global requirement for all to be insured.

As this program rolls out it is most certainly anticipated that workers' compensation medical coverage be included in the global effort. Studies have long shown that the litigation progress delays the delivery of benefits, increases administrative costs and depletes much needed medical resources from health research efforts.

Monday, November 17, 2008

The Rush to Follow Oregon

Praising of the Oregon workers' compensation system continues in earnest by the insurance industry. The Workers' Compensation Research Institute's (WCRI), Duncan Ballantyne, presented the winning factors about the Oregon system at a seminar to reform the Oklahoma system.

A reform movement has been launched in Oklahoma to overhaul the Oklahoma system. Orgeon contines to have very low workers' compensation rates and utilizes an administrative system to resolve work related claims. Legislation has been authored by Rep. Mark McCullogh to abolish the adversarial system in Oklahoma.

Thursday, November 13, 2008

Workers' Compensation Medical Benefits are in Critical Condition


Now that Barach Obama is a going to be at the helm of the US, greater attention is being focused on the need for a national health care system incorporating workers’ compensation medical coverage. With private insurance companies failing, unemployment increasing, the cost of medical care soaring, more attention has now been placed on the elimination of medical care as a workers’ compensation benefit paid by Industry.

It is not all surprising that Dr. Peter Barth reported to the WCRI Conference in Boston, that workers’ compensation programs may be swept up into a national health care system. He reminds us that this was attempted in the Clinton proposal. The enactment of such a proposal looks even more urgent now.

The medical system overall is now being stressed by: an aging workforce; medical conditions manifested by stress and aging; consumerism in health care; the attempt to shift costs from major medical plans and CMS to workers’ compensation; new and expensive treatment modalities, procedures and pharmaceutical products,and the expansion of palliative and “end of life care.” It is anticipated that the average cost may amount to $500.000 per claim.

The workers’ compensation system just can’t deliver medical treatment quickly and cheaply enough. The systems are frough with administrative costs delay. It is adversarial requiring legal timetables of investigation, litigation, adjudication and appeals. The progress of disease is not subject to court rules or judicial administration. Immediate and emergent medical treatment protocols follow a biological timetable not a legal one.

National health reform that embodies workers’ compensation as an element is a long awaited solution to coordinate and advance the delivery of health care to all Americans. Old, inefficient and archaic systems need to be abandoned if progress is to advance. Moving forward to the inclusion of workers' compensation into a universal and nationalized program for health care is an important and innovative change. The change is crticial and necessary to advance with science, the economy and the social structure of America.

Tuesday, November 11, 2008

“Going Green”-Alternate Dispute Resolution Proposed for Comp

A proposal has been introduced in the NJ Assembly formalizing an alternate dispute resolution (ADR) program for workers’ compensation. The proposal would allow the establishment of such a system through collective bargaining units and insurance carriers and group self-insurance plans.

Such programs have been utilized throughout the United States for decades and are commonly called “carve-out” programs. Labor and Industry have found them cost-effective and an expeditious manner of handling work related benefits. The cost of the NJ system, has been estimated at $1.8 Billion. The Star Ledger, in a series of articles entitled “Waiting in Pain,” highlighted the frustrations that have emerged because of delays encountered in the present system. The series focused on delays caused by multiple and fragment hearings.

The proposal has been introduced at a time when workers’ compensation systems and Industry as well as injured workers are seeking ways to reduce the spiraling costs of the administration of workers’ compensation and to enhance the delivery of benefits. Workers’ Compensation is struggling to reduce costs and employ environmentally friendly systems. The ADR program is an attempt to reduce costs and reduce environmental impact.

“Going Green” is a concept now being utilized by administrative and judicial systems throughout the country. One company, CourtCall®, utilizes telephonic conferences to avoid court appearances to help save the environment. Workers' Compensation claims in NJ require multiple appearances of the parties for both pre-trial conferences and hearings over extended periods of time.

Some reviewers have suggested elimination of the high cost of workers’ compensation program entirely as a value no longer justifying tort immunity. Instituting an ADR system, in a time of economic stress and increasing environmental costs associated with administration of a formal system, may offer an option to explore.

Wednesday, October 29, 2008

CMS Discusses Asbestos Claims MSP Reporting Requirements

CMS confirmed in a national telephone conference today that in workers' compensation claims where the toxic exposure, ie. asbestos exposure, ceased prior to December 5, 1980, reimbursement or reporting was not required. On the telephone conference call mandatory reporting requirements for liability insurance, no-fault and workers' compensation were discussed and questions solicited and from the participants..

The CMS position was validation of prior informal memorandum in circulation concerning asbestos exposures. The rationale for the opinion has been previously bean based upon the fact that the Medicare Secondary Payer Act was not enacted until that date.

The telephone conference call was scheduled by CMS in an effort to clear the air about its recent rules and suggestions concerning the implementation of the recent working requirements mandated by Congress. 42 U.S>C. 1395y(b)(7)).

Asbestos Dealer of Death - Canada

The Canadian delegation to the Rotterdam Convention was able to lobby effectively to prohibit a ban on asbestos for another two years. The Canadian mines will continue to churn out the killer fiber and ship it to unsuspecting countries as a result of an effective major lobbying effort of the Canadians to sway the votes of India, Pakistan, Vietnam and the Philippines.

Despite a report from an independent committee of scientist urging the ban of chrysotile asbestos this year, the effort to ban asbestos failed. Chrysotile asbestos is classified as a known human carcinogen by the International Agency for Research on Cancer and more than 40 countries have already banned its sale.

It has been reported that last year alone Canada sold $77 million to developing countries around the world. Unfortunately the cost for medical care caused by asbestos related disease far exceeds that value and the loss of life is priceless. Shielded by national laws the Canadian entities have protected themselves from recovery. Exporting disease for economic greed is beyond human comprehension and is shameful. Who are the Canadians kidding, asbestos kills!

Tuesday, October 28, 2008

Injured Workers' RICO Claim to Proceed Against Employer and Insurance Company


In a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed. Several injured workers brought the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) against their employer, Crawford & Company and [cut-off treatment doctor] Dr. Saul Margules.

The allegations included that, ".....Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of worker’s compensation benefits, and that defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of 18 U.S.C. §§ 1341, 1343, which serve as the predicate acts for their RICO claims."

The decision authored by Judge Karen Nelson Moore held "...that plaintiffs’ RICO claims [may go forward] because the WDCA [Michigan Workers' Compensation Disability Act] does not preempt their RICO claims and because plaintiffs have sufficiently pleaded a pattern of racketeering activity given that reliance is not an element of a civil RICO fraud claim."

The Court concluded, "...Our conclusion that worker’s compensation benefits are not insurance and our conclusion that the WDCA was not "enacted . . . for the purpose of regulating the business of insurance," each independently foreclose the defendants’ argument that the WDCA reverse preempts RICO under the McCarran-Ferguson Act.

Of additional signifiance is that sitting by designation on the panel with Judge Moore and Judge Gibbons, was The Honorable Harold A. Ackerman, US District Court Judge for the District of NJ. Judge Ackerman has long and knowledge history of RICO actions was a former NJ Workers' Compensation Judge.

Brown, et al. v. Casses Transport Co., et al., 6th Cir. 2008, Decided October 23, 2008

Monday, October 27, 2008

CMS Publishes User Guide for Workers' Compensation Reporting

The Centers for Medicare and Medicaid Services (CMS) has now released a guide for madatory reporting of Workers' Compensation claims. The 60 page guide outlines reporting formats required pursuant to Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173).

The US Congress mandated reporting in legislation enacted late last year, 42 U.S.C. 1395y(b)(8). The burden falls under insurance carriers to report the claims data.

"The purpose of the Section 111 MSP reporting process is to enable CMS to correctly pay for Medicare covered items and services furnished to Medicare beneficiaries by determining primary versus secondary payer responsibility. Section 111 requires RREs to submit information specified by the Secretary in a form and manner (including frequency) specified by the Secretary. "

General Requirements

•Input Claim Files must include properly formatted header, detail and trailer records as defined in the file layouts provided.

•Input Claim Files must be submitted on a quarterly basis, four times a year.

•Files must be submitted within an assigned, 7-day submission period each quarter. File submission timeframes will be assigned after successful registration for Section 111 reporting.

•RREs will be assigned a Section 111 Reporter ID during registration which is to be used on all submitted files.

•Section 111 liability insurance (including self-insurance), no-fault insurance, and workers’ compensation RREs must submit their initial production Section 111 Input Claim File during the fourth calendar quarter (October - December) of 2009 during their assigned submission timeframe.

•RREs must register on the COB Secure Web site (COBSW) by June 30, 2009, and complete testing prior to submission of production files. (The earliest date for registration is May 1, 2009.)
•Files may be submitted via the COBSW using Hypertext Transfer Protocol over Secure Socket Layer (HTTPS) or Secure File Transfer Protocol (SFTP). As an alternative, RREs with large amounts of data may submit via Connect:Direct (formerly known as NDM) via the AT&T Global Network System (AGNS). To use the AGNS method, RREs must first establish an AGNS account in order to send files directly to the COBC over AGNS. RREs that currently do not have an existing AGNS account should contact one of the well-established resellers of AT&T services to obtain a dedicated or a dial-up access line to the AGNS VAN. RREs are encouraged to do this as soon as possible since this set up can take a significant amount of time.

•RREs must implement a procedure in their claims resolution process to determine whether an injured party is a Medicare beneficiary. RREs must submit either the Social Security Number (SSN) or Medicare Health Insurance Claim Number (HICN) for the injured party on all Input Claim File detail records.

•RREs’ initial file submissions must report on all claims, where the injured party is/was a Medicare beneficiary, that are resolved (or partially resolved) through a settlement, judgment, award or other payment on or after July 1, 2009, regardless of the assigned date for a particular RREs first submission. This includes resolution (or partial resolution) through one payment obligation (regardless of whether the payment obligation is executed through a single payment, a structured settlement, or an annuity) as well as those situations where there is a responsibility for ongoing medical services.

•RREs must also report on claims for which the RRE still has responsibility for ongoing payments for medical services as of July 1, 2009, regardless of an initial resolution (partial resolution) date prior to July 1, 2009). (See the associated special reporting extension later in this document.)

•If an RRE has accepted Ongoing Responsibility for Medical payments (ORM) on a claim, then the RRE must report two events; an initial record to reflect the acceptance of ongoing payment responsibility and a second (final) record to reflect the end date of ongoing payment responsibility with the corresponding end date reflected in the ORM Termination Date (Field 78). Because reporting is done only on a quarterly basis, there may be some situations in which the RRE reports the assumption of ongoing responsibility in the same record as which a termination date for such responsibility. RREs are not to submit a report on the Input Claim File every time a payment is made for situations involving ongoing payment responsibility.

•A Federal Tax Identification Number (TIN) Reference File must be submitted with the Initial Claim File containing records for each plan TIN submitted in Field 47 of Claim File detail records. For those who are self-insured, their TIN may be an Employer Identification Number (EIN) or Social Security Number (SSN) depending upon their particular situation.

•All combinations of Plan TIN and TIN Site ID submitted in Fields 47 and 48 of the Claim File detail records must have a corresponding TIN/TIN Site ID combination on the TIN Reference File.

•Subsequent Claim Files do not need to be accompanied by a TIN Reference File unless changes to previously submitted TIN/Site ID information or new TIN/TIN Site ID combinations have been added.

•Subsequent quarterly update files must include records for any new claims, where the injured party is a Medicare beneficiary, reflecting settlement, judgment, award, or other payment since the last file submission. However, if the settlement, judgment, award or other payment is within 45 days prior to the start of the 7-day file submission timeframe, then an RRE may submit that claim on the next quarterly file. This grace period allows the RRE time to process the newly resolved (partially resolved) claim information internally prior to submission for Section 111. For example, if the settlement date is May 1, 2010, and the file submission period for the second calendar quarter of 2010 is June 1-7, 2010, then the RRE may delay reporting that claim until the third calendar quarter file submission during September 1-7, 2010. However, if the settlement date is April 1, 2010, then the RRE must include this claim on the second calendar quarter file submission during June 1-7, 2010. Records not received timely will processed but marked as late and used for subsequent compliance tracking.

•Subsequent quarterly update files must include pertinent updates/corrections/deletions to any previously submitted records.

•Quarterly update files must contain resubmission of any records found in error on the previous file with corrections made. No interim file submissions will be accepted.

•If you have no new information to supply on a quarterly update file, you must submit an "empty" Claim Input File with a header record, no detail records, and a trailer record that indicates a zero detail record count.

•E-mail notifications will be sent to the Section 111 RRE contacts after a file has been initially processed and when a response file has been transmitted or is available for download.
•Each detail record on the Input Claim File must contain a unique Document Control Number (DCN) generated by the RRE. This DCN is required so that response records can be matched and issues with files more easily identified and resolved. It can be any format of the RREs choosing as long as it is not more than 10 alpha-numeric characters as defined in the record layout. Most of CMS’ current data exchange partners use some form of a Julian date and a counter as their DCN.

•The COBC will return response files to the RRE within 45 days of the receipt date posted for the input file.

Thursday, October 23, 2008

Florida Supreme Court Rules $8/hour Attorney Fee Unreasonable

The Florida Supreme court ruled today in a workers' compensation case, that "....Inadequate fees and excessive fees are not reasonable attorney fees." It reversed the lower coourt ruling awarding an $8.00/per hour fee and upheld a counsel fee award of $16,000 for the trial work and left open an application for fee the appellate services.

Thursday, October 16, 2008

Oversight Sought of NJ Workers' Compensation System

New Jersey lawmakers have not given up on their mission to legislate changes to the State's workers' compensation system which had become the subject of a series of investigative articles in the Star Ledger Newspaper. The investigative reporting revealed a series of problems that the NJ legislature has been challenged to address.

Senate Majority Leader Stephen Sweeney (D-Gloucester), has introduced legislation (S-1982) establishng the position of ombudsman modeled after the Oregon system.

Friday, October 10, 2008

CMS Schedules Another Teleconference to Address Mandatory Reporting

CMS has scheduled yet another teleconference to address questions about mandatory reporting requirements in workers' compensation matters. The program is in preparation ofImplementation of Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007  (See 42 U.S.C. 1395y(b)(7)).

Participation is by telephone only:Wednesday October 29, 2008 1:00 PM – 2:30 PM Eastern Time - Call-in Line: 800-988-9534 -Pass Code:  NGHP