A Florida appeals court this week challenged the looser pays rule mandated by statute in workers' compensation cases. The Court declared:
"We are constrained to affirm the imposition of costs under section 440.34(3), Florida Statutes. In our view, the result here, while correct under prevailing law, raises important questions of public policy. We recognize that a statute providing for the imposition of costs is not designed to penalize, but to make the prevailing party whole. However, where the statute provides that an injured employee who seeks workers’ compensation benefits in good faith, but does not prevail and must then pay the employer’s costs, it is not unreasonable to argue, as Claimant does, that the statute imposes a chilling effect on future employees with meritorious claims. This is especially significant where a prevailing party’s opportunity to recoup its attorney’s fees is limited by statute. Such employees may thereby forego seeking benefits based on meritorious claims in order to avoid subjecting themselves to an award of costs. "
Traditionally, the workers' compensation system provided a summary and remedial adjudication process for the claims of injured workers. While "Times Have Changed," and greater restrictions have been placed on the process to reduce employee's access to benefits, the imposition of a "looser pays" rule, defies both good conscience and equity, upon which the workers' compensation act was crafted. Under the looser pays rule everyone looses.
An Appellate Court in Florida has upheld a state law that limits workers' compensation benefits due to age. The Court held:
Section 440.15(1)(b), Florida Statutes (2003), classifies the entitlement to PTD benefits by age of the claimant, providing:. . . If the accident occurred on or after the employee reaches age 70, benefits shall be payable during the continuance of [PTD], not to exceed 5 years following the determination of PTD. . . .Regarding age classifications in section 440.15, the Florida Supreme Court has stated, “[t]he ‘rational basis’ test is the proper standard of review. There is no 3basis to conclude that an elevated standard of review is appropriate.”
Boca Raton, FL – The 3rd Annual Miles for Meso weekend is set! February 10-12, 2012
Larry Davis, organizer of South Florida Mikes for Meso has announced: We are planning our ever popular Welcome event. Although you will need to check back with us for it’s location, you won’t be disappointed. We will offer the opportunity to meet friends, old & new, while picking up your race packet and information on the latest in Mesothelioma news.
Saturday evening – We will once again host our Health Symposium. We are currently making arrangements with 2 new physicians who will be discussing the latest news in cancer treatments and trials.
Sunday morning – On your mark … get set … get ready for the 3rd Annual Miles for Meso 8K/4K Tribute Walk! The race will start just after the sun rises over the beautiful Atlantic. It’s a beautiful site as you run along A1A patting yourself on the back for helping raise funds for an excellent cause!
This year’s event will have something for everyone involved;
Racers – A great course, a race T, snacks & friends.
Patients – It will be an amazing place to meet other patients and supporters of Mesothelioma, the Meso Foundation and the Asbestos Disease Awareness Organization. There is a wealth of information just within those people, not to mention the incredible attorneys we will have on hand who can assist in giving you further information on how they can help and programs they offer.
Survivors (patients & family members) – Support in numbers. You aren’t alone in your fight against Mesothelioma and the companies who have used asbestos in their products! Talk with us and let the healing begin.Volunteers – We absolutely couldn’t do this without you. Every year we have wonderful people who come out and donate their time to making this event a success. Please join us again and help make this our best race yet.
South Florida Miles for Meso Race Info
Welcome Event
The race's welcoming event will take place Friday, Feb. 10. This event will offer participants to meet friends, old & new, while picking up race packets and information on the latest mesothelioma news. Location & times TBA.
Health Symposium
A Health Symposium will take place Saturday evening before the race. Last year, it featured Dr. Richard Alexander. Plans are under way to feature two physicians who will discuss the latest news in cancer treatments and clinical trials.
TIMES
Pre-Registration begins at 5:45 a.m. the day of the race
The 8K race starts at 7:30 a.m.
PLACE
Spanish River Park
3001 North Ocean Blvd.
Boca Raton, FL 33431
LOCATION & DIRECTIONS
The race starts on AIA in front of Spanish River Park. Take I-95 to Palmetto Park Road, East to AIA, then left (north) 2.5 miles to Spanish River Park.
COURSE
USATF Certified Course by Evert McDowell
ENTRY FEES
More information coming soon.
8K RUN AWARDS
Awards will be giving to the top 3 overall M/F runners; the top master M/F runners; and the top 3 M/F runners in the following age group categories: 0-9, 10-14, 15-19, 20-24, 25-29, 30-34, 35-39, 40-44, 45-49, 50-54, 55-59, 60-64, 65-69, 70-74, 75-79, and 80+.
IN-STORE REGRISTRATION
More information coming soon.
REGISTER ONLINE
More Information Coming Soon!
HEAT WARNING
Temperatures & humidity can be high in South Flordia. Participants should drink plenty of fluids (non-alcoholic) for 48 hours prior to, during and upon finishing the race. Beware of heat injury symptoms: dizziness, no sweating, nausea, cramps, redness, incoherent speech & thoughts. Seek immediate medical attention if symptoms occur. Wear loose, light-colored clothing.
Florida ruled that the rate request from NCCI (National Council on Compensation Insurance, Inc.) was based on a flawed calculation. Nevertheless, the State of Florida did rule that the workers' compensation rates would increase 8.9% effective January 1, 2012.
"Commissioner McCarty’s Order is technically a denial of NCCI's rate filing. The Office did not accept NCCI’s methodology for input parameters including policyholder dividends, the loading for these dividends, and investment yields. The Office also did not accept specific rate changes for certain classes, specifically the "F" classes for workers covered by the Federal Acts, classification code 5551 (roofers), and classification code 7705 (Ambulance and EMS providers). The Office also disapproved the proposed increase in minimum premiums."
The Sunshine State has take a very serious economic downturn following the collapse of the real estate market over the past few years. When one drives through southern Florida you can detect that the only industry that is booming is the signage companies that print the "For Lease" and "For Rent" signs that have proliferated throughout the region.
NCCI provides rate information for the majority of States where workers' compensation is written. The availability of rating data is somewhat restricted.
The news of increased workers' compensation rates, compounded by recent real estate taxes increases, is not good news for the staggering Florida economy that by luck this year missed the impact of severe hurricane season. Should that change in 2012, the increased to be assessed in 2012 may produce a defining moment for the entire workers' compensation program in that state.
The announcement by the US Attorney in Florida of the indictment today of 24 individuals for trafficking Oyxcodone puts a cloud over the claims that the workers compensation system is to blame. With the alleged bad apples caught, the announcement should refocus concern not on the work comp system, but rather on those outsiders who attempt to prey on it for personal gain.
If anything, the system needs more safeguards to protect both the injured workers as well as the taxpayers. Pending legislation in Florida that restricts prescribed medications in workers' compensation claims only emasculates the social remedial benefit program further forcing the disabled to seek help outside the system. Why blame the victims and punish them.
Researchers from the Centers for Disease Control and Prevention report that Schedule II prescription painkillers, like oxycodone, today cause more drug overdose deaths than cocaine and heroin combined. Oxycodone and other Schedule II drugs have a high potential for abuse and can be crushed and snorted, or dissolved and injected, to get an immediate high. This abuse can lead to addiction, overdose, and sometimes death.
The nine-count indictment, filed on September 30, 2011 and unsealed today, charges all defendants with conspiracy to possess with intent to distribute controlled substances, namely oxycodone and oxymorphone (Count 1), and conspiracy to commit health care fraud (Count 9). Several of the defendants also face substantive charges of possession with intent to distribute controlled substances (Counts 2-6, 8), and attempted possession of controlled substances (Count 7).
Charged in the indictment are Aiman Izzedin Aryan, 40, of Pinecrest, Emerson Carmona, 40, of Miami,Frank J. Ballesteros, M.D., 57, of Miami, Gerardo Gomez, 38, of Miami, Juan De Dios Gomez, 40, of Miami, Danay C. Manso, 22, of Miami, Danilo Falcon, 38 of Miami, Eliezer Salgado, 29, of Hialeah,Francisco Hernandez, 57, of Miami, Leroy Paige, 49, of Madison, Alyssa Lyn Paige, 32, of Madison,Cynthia Suzette Adderley, 53, of Ft. Pierce, Victor D. Alexander, 50, of Ft. Lauderdale, Aaron Lamar Allen, 44, of Ft. Lauderdale, Henry Louis Conley, Jr., 53, of Miami, Hattie Mae Green, 53, of Miami,Petronella Smith Howard, 52, of Ft. Pierce, Eric Fyke Miller, 42, of Ft. Lauderdale, Annie Mims Simmons, 72, of Miami, Bobbie Lee Anderson, 58, of Gifford, Denise Darcelle Dardy, 48, of Miami, Margaret Marie Elliott, 54, of Ft. Pierce, Billy Joe McCoy, 53,of Ft. Pierce, and Ronald Regains, 56, of Ft. Lauderdale.
U.S. Attorney Wifredo Ferrer stated, “According to recent estimates, Florida prescribes ten times more oxycodone pills than all other states combined. Each day, individuals die from prescription drug overdoses. To stop this drug epidemic, we have previously charged clinic owners, operators, and doctors who deal drugs while hiding behind a medical license. Today, we have focused our efforts on those pharmacies who are churning out pills that are fraudulently prescribed at area pain clinics. We will continue to tackle South Florida’s pill mill epidemic from all angles and at all levels to eradicate these drug dealing organizations.”
DEA Special Agent in Charge Mark R. Trouville said, “The Drug Enforcement Administration continues its relentless attack on those who supply the prescription drug epidemic in our country, state, and local communities. With today’s arrests, twenty four people will no longer add to this drug problem.”
“Today’s multi-agency operation makes clear that drug trafficking and health care fraud make for a vile combination that simply cannot be tolerated,” said Christopher B. Dennis, Special Agent in Charge for the HHS-OIG region based in Miami. “Schemes to steal from taxpayers to pay for highly addictive, highly profitable street drugs , as the government alleges in this case, will trigger investigation and prosecution.”
“The Internal Revenue Service will continue to provide its financial investigative expertise to further the prosecution of criminals, especially those involved in complex financial schemes,” said IRS Special Agent in Charge Jose Gonzalez.
“The trafficking of oxycodone and oxymorphone has seeped into our community and extends beyond the borders of Miami-Dade County. We stand committed to working with our state and federal partners in the ongoing effort to apprehend these drug dealers who are destroying lives with their criminal behavior,” said Miami-Dade Police Department Director James K. Loftus.
“Through operations like this one, prescription drug peddlers are getting the message that pill pushing is no longer tolerated in Florida,” Broward Sheriff Al Lamberti said. “Federal and local enforcement efforts have turned the tide but we need to keep up the good work.”
“The Florida Department of Health has been diligently working with our law enforcement partners to identify unscrupulous practitioners who are inappropriately prescribing controlled substances,” stated Florida Surgeon General Dr. Frank Farmer. “When DOH learns that a practitioner is not following the law, we suspend that practitioners license. We will aggressively continue to fight the prescription drug problem in Florida.”
According to the indictment, from as early as November 2007 September 2011, defendants Gerardo Gomez, Juan De Dios Gomez, and Danay C. Manso operated and utilized pain clinics in Miami-Dade and Broward Counties. These pain clinics housed physicians, including defendant Frank J. Ballesteros, M.D., who would fraudulently prescribe oxycodone and oxymorphone for co-conspirator beneficiaries of Medicare and other prescription drug insurance plans. The beneficiaries would then present the fraudulent prescriptions obtained from the Gomezes’ pain clinics at complicit pharmacies operated by defendants Aiman Izzedin Aryan and Emerson Carmona. Once the prescriptions were filled, Aryan and Carmona would bill Medicare, and other insurers, for the cost of the prescriptions, knowing that the drugs were medically unnecessary and were being re-sold by the beneficiaries.
Defendants Leroy Paige, Alyssa Lyn Paige, Cynthia Suzette Adderley, Victor D. Alexander, Aaron Lamar Allen, Henry Louis Conley, Jr., Hattie Mae Green, Petronella Smith Howard, Eric Fyke Miller, and Annie Mims Simmons facilitated the drug-trafficking and health care fraud conspiracies by recruiting the corrupt health insurance beneficiaries to visit the Gomezes’ pain clinics and Dr. Ballesteros. Often, these recruiter defendants further participated by transporting the beneficiaries to the pain clinics to obtain the prescriptions and then to the pharmacies where they were filled. At the pharmacies, these defendants would receive and take control of the drugs from the beneficiaries. Once these defendants had the drugs, they would distribute them to Gerardo Gomez, Juan De Dios Gomez, Danilo Falcon, and Eliezer Salgado.
Defendants Bobbie Lee Anderson, Denise Darcelle Dardy, Margaret Marie Elliott, Billy Joe McCoy, and Ronald Regains were beneficiaries who posed as patients to obtain the fraudulent prescriptions for oxycodone and oxymorphone, which they then sold.
The indictment contains a forfeiture allegation seeking approximately $40,000,000 which is listed as the amount of proceeds derived by the defendants from the drug trafficking offenses charged in Counts 1 to 8 of the indictment.
If convicted, the defendants face a statutory maximum penalty of 20 years in prison on Counts 1 to 8, and a statutory maximum penalty of 10 years in prison on Count 9.
Today’s case, named Operation Gotham, is the result of the ongoing efforts by the Organized Crime Drug Enforcement Task Force (OCDETF), a partnership between federal, state and local law enforcement agencies. The OCDETF mission is to identify, investigate, and prosecute high level members of drug trafficking enterprises, bringing together the combined expertise and unique abilities of federal, state and local law enforcement.
Mr. Ferrer commended the DEA, the HHS-OIG, the IRS, the Miami-Dade Police Department, the Broward Sheriff’s Office, and the Florida Department of Health, for their work on Operation Gotham. This case is being prosecuted by Assistant U.S. Attorney Dwayne E. Williams.
An indictment is only an accusation and the defendants are presumed innocent until proven guilty.
Attachments: Indictment (PDF)
A copy of this press release may be found on the website of the United States Attorney's Office for the Southern District of Florida at http://www.usdoj.gov/usao/fls. Related court documents and information may be found on the website of the District Court for the Southern District of Florida athttp://www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov.
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)
