Defense bar files brief to U.S. SC in support of insurer

Today's post was shared by Legal Newsline and comes from legalnewsline.com

DRI: The Voice of the Defense Bar this week filed an amicus brief with the U.S. Supreme Court, saying the terms of an Employee Retirement Income Security Act-covered plan must be upheld. Heimeshoff v. Hartford Life & Accident Insurance Co. et al. is expected to settle differences among the courts of appeals regarding the extent to which the terms of an ERISA-covered plan can establish the date on which the statute of limitations to file a claims for benefits complaint in federal court will begin to run. The Employee Retirement Income Security Act protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire. According to the U.S. Department of Labor, ERISA is a federal law that sets minimum standards for pension plans in private industry. For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have a non-forfeitable interest in their pension, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death. Most of the provisions of ERISA are effective for plan years beginning on or after Jan. 1, 1975. On Aug. 22, 2005, Julie Heimeshoff, a Walmart employee, submitted a claim for long-term disability benefits under the ERISA-covered...

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More Regulation Called for of State Opt-Out Plans

A recently published report by the New Street Group, sponsored by Sedgwick  calls for the intervention of state regulation over workers' compensation opt-out plans. Recognizing the gray line between State and Federal insurance programs, the report concludes that the Federal  and state courts may ultimately decide the direction of workers' compensation in the US.

By Peter Rousmaniere and Jack Roberts

Read more about "opt-out" plans and workers' compensation

Oklahoma Opt-Out Workers' Compensation Law Enacted

May 07, 2013

Governor Mary Fallin today signed into law Senate Bill 1062, a bill that reforms the workers' compensation system in Oklahoma by removing it from the judicial system and making it an administrative process. The bill, by ...

http://workers-compensation.blogspot.com/

Workers' Compensation: Opting-Out: Airport Cancer Machines ...

Jun 03, 2013

The Electronic Privacy Information Center, or EPIC, filed a lawsuit against the Department of Homeland Security to establish that all air travelers have the right to opt out of airport body scanners. In additional to the privacy ...

http://workers-compensation.blogspot.com/

Workers' Compensation: "Opt-Out" -- TSA To Remove All ...

Jan 19, 2013

The US Transportation Safety Administration (TSA) is following the lead on many other countries, including the European Community, and is removing all Backscatter machines from service. While not admitting to the radiation ...

http://workers-compensation.blogspot.com/

Five reasons in support of “National Airport Scanner Opt-Out Week”

Nov 16, 2012

An activist movement is encouraging individuals to opt-out of going through airport x-ray scanners during Thanksgiving travel. Health concerns have been raised over the use of machines. Many United States unions have ...

http://workers-compensation.blogspot.com/

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The Attack on the Citadel: A Potential National Loss

Workers’ Compensation is conceptually changing, and its extinction is becoming more apparent rather than its transformation. Over the past decades, the “grand bargain” of Workers’ Compensation had evolved to ease the American industrial/manufacturing revolution forward, without burden from the economic complexities and ramifications of the Civil Justice System. 

“The Promise” made in 1911, with the adoption of the compensation system, is now past history. The demands of the globalized marketplace have eroded the fortress of workers’ compensation that protected the rights, safety and lives of American workers.

Dynamic developments, occurring at an ever increasing pace, have altered the landscape and accelerated a devastating attack on the citadel of workers’ compensation. The root of the cause is economic.

Beneficiary Not Permitted Injunctive Relief From EIRSA Plan Invoking MSP Terms

A Federal Court held that a beneficiary was unable to seek injunctive relief against an EIRSA plan, where the beneficiary sought to have the ERISA Plan action to declare Medicare the primary plan and subject to the Medicare Secondary Payer Act (MSP). The ERISA plan was held to have the right to changes the terms of the plan in order to align the UNICare Benefits of Choice Program with federal law.

The court declared the MSP action alleged in the complaint moot as it granted the motion to dismiss on the injunctive relief issue. The plaintiff/beneficiary sought to allege a private cause of action for double damages against "those of any entity contractually obliged to pay for an individual’s primary health care" The Court held, "....the plaintiff is not attempting to collect damages for medical bills improperly paid by Medicare on his behalf, but instead seeks an injunction requiring Unilever to pay for future medical expenses. No court has allowed a claim for injunctive relief under § 1395y(b)(3)(A) and I am persuaded that such a claim is not authorized by the statute." Im a footnote the indicated, "The government may be authorized to seek declaratory and injunctive relief under § 1395y (b)(2)(B)(iii). See United States v. Baxter Int'l, Inc., 345 F.3d 866, 909 (11th Cir.2003)."

PACHALY v. BENEFITS ADMINISTRATION COMMITTEE UNILEVER UNITED STATES INC. et al., 2913 WK 172993 (DC CT 2013) Decided Jan. 16, 2013

Workers’ Compensation 2013 – What Happens on the Other Side of The Fiscal Cliff?

The fiscal reality is that workers’ compensation is in greater jeopardy than ever before as the debate in Washington is not about the deficit at all. The debate is about government spending which includes health care.

Overall health care devours 18 percent of the US economy and amounts to 25% of the Federal budget.

Medical treatment for injured workers continues to be delayed, denied and limited under current workers’ compensation programs. Medical costs continue to be shifted to other programs including employer based medical care systems and the Federal safety net of Medicare, Medicaid, Veterans Administration and Tricare.

While a trend continues to emerge to offer “Opt Out” and “Carve Out Programs,” they are not global enough to solve the critical budget deficit issues. The latest emerging trend is for employers to utilize ERISA based medical care plans to efficiently delivery medical care. In NJ a limited alternate dispute-resolution procedure between unions and employers has been introduced. See “NJ Care Outs –Another Evolutionary Step” authored by David DePaolo.

The US economy continues to be very weak. This in an ominous signal for the nation’s workers’ compensation program which is starved for premium dollars. Premiums are based upon salaries and real median incomes continued their dramatic decline over the last decade from $54,841 in 2000 to $50,054 in 2011. There just may not be enough dollars available in the workers’ compensation programs to pay for present and lifetime medical care.

Even the present Federal system leaves much to be desired. Whether Federal rationing medical care becomes a reality is unknown. Physicians are under economic scrutiny as the “Doc Fix” to limit provider fees continues as a cloud over all medical programs. The agreement reached by Congress still does not resolve the 26.5% percent cut reimbursement cut to physicians who treat Medicare patients. The law merely "freezes" payment to physicians.

Workers’ compensation programs presently structured provide no real economic incentive to monitor and compensate for more favorable medical outcomes. On the other hand, the Federal government, with broad and sweeping regulatory ability, is able to continue to make strides in many areas including present incentives to hospitals and proposed incentives to physicians to provide medical treatment with fewer complications and ultimate better outcomes

Steven Ratner in the NY Times points out the dramatic increase in the nation’s health care costs. He wrote, “…no budget-busting factor looms larger than the soaring cost of government-financed health care, particularly Medicare and Medicaid.”

Solving the economic gridlock of the country will require an approach to re-invent a medical program for injured workers. A global single-payer program under Federal control will eliminate duplicative administrative State and private efforts. The Federal government has the clout to provide efficient enforcement and co-ordination.

Now that we are on the other side of the fiscal cliff, the opportunity to be creative is possible. The US needs to transition to a single-payer health care system subsuming a medical care program for injured and ill workers who suffer both traumatic and occupational conditions.

Read more about the "single-Payer System" and workers' compensation

Workers' Compensation: A Single Payer System Will Solve the ...
Nov 29, 2012
The question is whether the nation will recognize that the US needs tol take the bold step previously taken by the European Community, finally adopt a single payer medical care program. The perpetual cost generator that ...
http://workers-compensation.blogspot.com/

NJ Urged to Adopt Single Payer System for Workmens Comp
Jun 06, 2011
NJ Urged to Adopt Single Payer System for Workmens Comp. A coalition that has been formed in NJ is urging that the Garden State follow the lead of Vermont and establish a single-payer system. Single-payer movements ...
http://workers-compensation.blogspot.com/

Vermont Single Payer System Called the Dawn of A New Era
Apr 03, 2011
The proposed state based Vermont Single-Payer health care system, that would embrace workers' compensation medical care, is gaining momentum. A recent article in the New England Journal of Medicine, citing increased ...
http://workers-compensation.blogspot.com/

RICO Issues Can Be Cured With A Single Payer Medical System
Mar 22, 2011
Vermont's proposed single payer system would seperate medical care from indemnity. Vermont's single proposed single-payer system would likely also provide a primary care doctor to every resident of Vermont. This would ...
http://workers-compensation.blogspot.com/

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"Under the Magnifying Glass" -- US Supreme Court Hears Arguments in ERISA Equitable Reimbursement Claim

The US Supreme Court this week heard arguments in the dispute over whether ERISA claims are subject to equitable reimbursement.

Jurist summaries the case and background:

"The case [SCOTUSblog backgrounder] concerns a former employee of US Airways, James McCutchen, who was injured in a car accident. McCutchen, as an employee, had a self-funded health plan that ended up paying out approximately $66,000 for his injuries. Through insurance payouts and a settlement from the negligent driver, even with a hefty attorney's fee levied against him, McCutchen ended up approximately $66,000 ahead. US Airways then demanded reimbursement of its health plan's payout, since McCutchen's medical care was covered by other insurance options, based on language in the plan itself. The US Court of Appeals for the Third Circuit, in defiance of several other circuits held [opinion] that "appropriate equitable relief" did not include revoking the payment to McCutchen.

Interestingly enough at oral argument justice Breyer directed the parties to the historia; implications of an equitable claim:

"JUSTICE BREYER: Well -- well, let me tell
you what I'm thinking of. The -- there is a contract
all written down. They forgot to put a seal on it.
They forgot to put a seal on it, so I guess it's now
1463 or some year like that. So they go into equity.
And now, they are in equity. And the
plaintiff says, judge, I want you to enforce this
contract. He says, I'm a judge in equity. He says, I
know, but we've agreed, and you enforce it in equity.

"The contract says give Smith all the wheat,
and equity says, you know, there are other people who
would like some of this wheat, too, so we are not going
to follow the contract. We are going to modify the
contract according to equitable principles, which, as
you say, they can do. And the other side says, no, they
wouldn't. They'd follow the contract. They are just in
equity because they forgot the seal.

"Okay. What is your best case to show they
did, indeed, modify it with the Common Fund Doctrine or
some other doctrine? I want to be sure to read it with
a magnifying glass."

U.S. Airways v. McCutchen (11-1285)
....
Jon L.Gelman of Wayne NJ, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

More about "ERISA" and "workers' compensation"

US Supreme Court to Hear Arguments in ERISA Equitable ...

Nov 13, 2012

ERISA health reimbursement claims asserted in Workers' Compensation claims may be subject to equitable relief depending on the upcoming decision in a case pending before the US Supreme Court. Oral argument is ...

http://workers-compensation.blogspot.com/

Workers Compensation Beneficiary Challenges to ERISA Setoff

May 27, 2010

The ERISA plan administrator originally, in October 2004 determined that no offset of workers' compensation benefits would be permitted based upon a specific loss date. In December 2007 the beneficiary was by the plan ...

http://workers-compensation.blogspot.com/

EIRSA's Reach Shortened by the US Supreme Court

Aug 15, 2008

2008) ,that held that an employee's state law negligence claim against her employer for the failure to maintain a safe workplace were not preempted by the Employee Retirement Income Security Act (ERISA]. The employee's ...

http://workers-compensation.blogspot.com/

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The New Non-Subscriber Opt-Out Plan Is Emerging As The Alternative to Traditional Workers' Compensation

Given birth by Bechtel in Massachusetts over a decade ago, nurtured by ERISA (Employee Retirement Income Security Act, 29 USCS § 1002) ) and fed by the increasing frustrations of employers and employees throughout the nation, the new non-subscription Opt-Out Plan has emerged as a leading alternative solution to traditional workers' compensation coverage.

It has been reported that since its formal adoption by Oklahoma last week, David DePaolo, the knowledgeable CEO of WorkCompCentral (and cycling enthusiast) reports  that other states, including: Colorado, Kansas, Louisiana and Tennessee, will have legislation introduced to statutorily recognize the concept.

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