The 11th Circuit Court of Appeals decided that a four-year statute of limitation applies to private actions pursued under the Medicare Secondary Payer Act [MSPA].
Showing posts with label Statute of Limitations. Show all posts
Showing posts with label Statute of Limitations. Show all posts
Thursday, August 11, 2022
Sunday, January 20, 2019
Six-Year Statute of Limitations Governs Medical Claims
In a landmark decision the NJ Court of Appeals held that medical provider claims for expenses in workers’ compensation claims are subject to a contractual six-year statute of limitations. The ruling will have a major impact upon the overburdened state’s Division of Workers’ Compensation (NJDWC) system.
The NJDWC is already recognizing a soaring number of medical expense disputes and it lacks a standardized adjudication process. The Legislature should establish a medical fee schedule and create a separate alternate dispute resolution (ADR) system to adjudicate the medical provider claims.
Wednesday, February 7, 2018
Infancy Does Not Toll Workers’ Compensation Claim - Unpublished Opinion
Unlike a civil action, Workers’ Compensation claims must be filed within the procedural limitations of the NJ 2-year statute of limitations and are not tolled by infancy. Minor children seeking benefits under the dependency provisions of the Act must file a claim timely.
Sunday, November 19, 2017
Client Communications and Equitable Tolling
When injured workers’ have disappointing experiences flowing from work-related injuries the road becomes difficult for all participants in the process, including the attorneys involved. A client’s understanding of the basic process is necessary to prevent future controversies.
Wednesday, October 16, 2013
Jerry Brown vetoes public safety death benefits bill
Gov. Jerry Brown vetoed legislation Sunday that would have extended the statute of limitations for survivors of public safety officers to file a workers' compensation claim for death benefits.
Assembly Bill 1373, by Assembly Speaker John A. Pérez, D-Los Angeles, would have extended the time limits for survivors' claims for injuries while on duty to 480 weeks from 240 weeks in cases involving cancer, tuberculosis or blood-borne infections diseases. Brown vetoed a broader version of the bill last year, and in vetoing an unrelated bill Saturday regarding the timeliness of sex abuse victims' claims, the Democratic governor delivered a virtual treatise on the significance of statutes of limitation. In his veto message, Brown said the measure is "identical to the one I vetoed last year." "At that time, I outlined the information needed to properly evaluate the implications of this bill," he wrote. "I have not yet received that information." In his veto a year ago of Assembly Bill 2451, Brown said there was "little more than anecdotal evidence" available to determine how to balance "serious fiscal constraints faced at all levels of government against our shared priority to adequately and fairly compensate the families of those public safety heroes who succumb to work-related injuries and disease." This year's bill was backed by labor unions representing firefighters and law enforcement officers, who argued existing law fails to provide for the families of... |
Tuesday, November 13, 2012
NJ Supreme Tolls Statute of Limitations For 3 Weeks Due to Hurricane Sandy
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| Volunteers from Cruz Roja Mexicana hand out water and food to Hurricane Sandy survivors. Hoboken has a large Hispanic population and Spanish-speaking volunteers are in high demand here. Photo by Liz Roll/FEMA |
SUPREME COURT OF NEW JERSEY
Because of the devastating impact
and aftermath of Hurricane Sandy on the State of New Jersey, it is ORDERED that
in the computation of time periods under the Rules of Court and under any
statute of limitations, Monday, October 29, 2012 through Friday, November 16,
2012, for purposes of filing deadlines, shall be deemed the same as legal
holidays.
This tolling Order consolidates,
extends, and supersedes the separate Orders dated November 1, 2012 (which
covered October 29, 2012 through November 1, 2012); November 2, 2012 (which
covered November 2, 2012); and November 5, 2012 (which covered November 5,
2012).
/s/ Stuart Rabner
Chief Justice
Read more about "Hurricane Sandy"
Nov 06, 2012
Safety is a primary issue when you're recovering from a disaster. Follow these tips to help ensure your safety and cope with the disaster. If you aren't able to return home, states, tribes, localities, and the Red Cross continue to ...
Nov 05, 2012
NJ Hurricane Sandy Resources: Food, Water, Fuel, Hotels and Pharmacies. The NJ Regional Operational Intelligence Center has now posted a list of resources for victims suffering from Hurricane Sandy. FOOD Type Address ...
Nov 04, 2012
The path of destruction to buildings caused by hurricane Sandy has created a potential threat of deadly asbestos exposure. Many structures destroyed and damaged by the storm contained asbestos fiber and those were ...
Nov 01, 2012
We in New Jersey suffered devastating effects from Hurricane Sandy. The storm left a trail of decimation equivalent to the creation of a war zone, and some of most treacherous rescue and recovery situations ever imagined.
Saturday, October 22, 2011
Government Appeals Case Involving MSP Statute of Limitations
The case was tried in the U.S. District Court, Northern District of Alabama (Eastern) before Judge Karon O. Bowdre and involved a contract reimbursement claim under the Medicare Act, specifically 425 USC 1395 (HHS). A Final Order was entered on September 13, 2011 the the United States filed a Notice of Appeal on October 11, 2011.
Read the prior posting: CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim 10.1.2010
United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama)
Monday, August 29, 2011
Pensions, Workers Compensation and Medical Benefits
The State of New Jersey has taken assertive action to guarantee medical benefits to injured workers for their lifetimes even though they are receiving accidental injury pensions. The Director has issued an Administrative Directive requiring language to literally toll the statute of limitations and permit the Division of Workers' Compensation to retain jurisdiction over such matters where the injured worker has accepted the continuing medical benefit option.
"Petitioner has been awarded and accepted an accidental disability pension effective _(date)_. To resolve the workers' compensation case, petitioner and respondent have agreed to provide petitioner with reasonable and necessary medical treatment for injuries related to the _(date)_ accident. This Order for continuing medical benefits shall not be subject to the two year statute of limitations and such medical benefits shall continue for the life of the petitioner or until further order of this court."
By statute, workers' compensation awards are offset by pension awards. The medical issue remains open usually and medical benefits remain the responsibility of the employer. The medical issue becomes a complication when costs are attempted to be shifted to collateral medical carriers or Medicare. The subsequent reimbursement issue then generates medical lien claims that must be litigated. The incorporation of the language will greatly clarify responsibility and expedite medical care and payment.
"Petitioner has been awarded and accepted an accidental disability pension effective _(date)_. To resolve the workers' compensation case, petitioner and respondent have agreed to provide petitioner with reasonable and necessary medical treatment for injuries related to the _(date)_ accident. This Order for continuing medical benefits shall not be subject to the two year statute of limitations and such medical benefits shall continue for the life of the petitioner or until further order of this court."
By statute, workers' compensation awards are offset by pension awards. The medical issue remains open usually and medical benefits remain the responsibility of the employer. The medical issue becomes a complication when costs are attempted to be shifted to collateral medical carriers or Medicare. The subsequent reimbursement issue then generates medical lien claims that must be litigated. The incorporation of the language will greatly clarify responsibility and expedite medical care and payment.
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 occupational accidents and illnesses.
Friday, November 19, 2010
US Seeks to Amend Complaint in Reimbursement Action to Define SOL
The Centers for Medicare and Medicaid Services (CMS) has filed a Motion to Amend its complaint in a lawsuit that will define the Statute of Limitations in a Medicare Secondary Payer (MSP) recovery action. The action by CMS followed the Court granting CMS's Motion for Reconsideration in order to clarify the alleged $25 Million continuing accrual claim.
The Motion pleads, "Although the United States contends that it has set forth sufficient facts alleging its cause of action, the amendments set forth with more specificity (1) the Defendants’ payment of and receipt of annual payments made and received through 2013 as a result of the Abernathy Settlement Agreement, (2) their liability under the MSP Statute stemming from the annual payments, (3) additional information concerning the identified Medicare beneficiaries among the Abernathy Plaintiffs, (4) changes to certain allegations based on facts included in Court filings, and (5) the removal of The Cody Law Firm as a defendant."
The Motion pleads, "Although the United States contends that it has set forth sufficient facts alleging its cause of action, the amendments set forth with more specificity (1) the Defendants’ payment of and receipt of annual payments made and received through 2013 as a result of the Abernathy Settlement Agreement, (2) their liability under the MSP Statute stemming from the annual payments, (3) additional information concerning the identified Medicare beneficiaries among the Abernathy Plaintiffs, (4) changes to certain allegations based on facts included in Court filings, and (5) the removal of The Cody Law Firm as a defendant."
CMS alleges that the parties knew of the outstanding conditional payments made by CMS and failed to reimburse the payments under the MSP Act.
USA v. Strickler, et al., Civil Action No. 1:09-cv- 02423-KOB (USDCT ND Alabama) Filed 11/16/10
Wednesday, November 3, 2010
Court Grants Motion to Reconsider Statute of Limitations in CMS Case
In order to avoid any "maifest injustice," the Court that had previously dismissed the Government's case against insurance companies and lawyers for failure to reimburse the Centers for Medicare and Medicaid Services (CMS), has granted a motion to reconsider under the plaintiff's accrual theory.
"As its fourth ground for reconsideration, Plaintiff argues that the court erred in concluding that the Government inadequately raised a theory of continuing accrual against all defendants concerning the annual $2.5 million payments from 2004 through 2014 contemplated in the Abernathy Settlement Agreement. Admittedly, Plaintiff did not address this theory in its responsive briefing to the Defendants’ motions to dismiss. At the September 13, 2010 hearing, the court granted verbal leave for Plaintiff to submit a motion to amend its complaint to more clearly articulate a claim on this issue. For whatever reason, Plaintiff has failed to do so, but argues in its motion to reconsider that it properly pled a theory of continuing accrual in its First Amended Complaint and raised it at the hearing. Though this theory should have been raised and argued in Plaintiff’s brief in response to the multiple motions to dismiss filed by Defendants, the court will allow Defendants an opportunity to respond in full to this issue to avoid any possible clear error. Therefore, the court GRANTS Plaintiff’s motion to reconsider as to the issue raised in part D regarding a continuing accrual theory and ORDERS that Defendants have until Tuesday, November 16, 2010 to respond as to whether the allegations pled in Plaintiff’s First Amended Complaint are sufficient to state a claim for a theory of continuing accrual; and if so, whether the court committed clear error in dismissing Count VI of Plaintiff’s First Amended Complaint.
"Finally, the court RESERVES RULING as to the tolling issue raised in part E of Plaintiff’s motion to reconsider. To avoid any possible clear error and/or manifest injustice, the court will allow Defendants until Tuesday, November 16, 2010 to respond as to: 1) whether the court should reconsider the issue of tolling; and 2) if the court does, whether it committed clear error in application of the appropriate burden of raising or pleading tolling in this context and in granting the motion to dismiss before discovery had yet occurred.
USA v James J. Strickler, et al CV 09=BE-2423-E
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.
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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.
Saturday, September 4, 2010
CMS/MSP Statute Tolling Case Set for Hearing by Federal Court
The claim filed by the US government for reimbursement against multiple law firms and insurance companies has been scheduled for a hearing September 13, 2010 on the pending motions. The Federal government, who has claimed that the Statute of Limitation was tolled, is seeking reimbursement involving over 900 specific claims that were paid involving a liability action. The gross settlement was $275 Million for which payment was made in 2003.
The Centers for Medicare and Medicad Services (CMS) under the Medicare Secondary Payer Act has alleged that it was not reimbursed. The Government contends that the Statute of Limitations under 28 U.S.C.2415 is 6 years and not three years. Alternatively the Government has argued that the Statute f Limitations was tolled under 28 U.S,C, 2416(c), which permits tolling where a claim has accrued, but "facts material to the right of action are not known and reasonably could not be known" by the Government.
The attorneys and insurance companies contend that the Statute of Limitations is a valid defense since the the claim arose when the defendants were originally obligated under the settlement agreement to make payment. Travelers and AIG, as parent companies, claim that they are not proper parties to the case and should be removed as parties. The insurance companies, in a brief filed in June 2003, also allege that the bar to permitted the statute of limitation tolling should have been dropped under Federal statute. The stated in "....once the facts making up the 'very essence of the right of action' are reasonably knowable."
United States of America v. James J. Stricker, et al., Case No. 1:09-cv-02423-KOB (USDCT AL).
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Amended Complaint Filed in CMS Recovery Action Against Law FirmsFor 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 occupational exposures.
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