NJ Issues a Procedural Alert for Medicare Elligible Petitioners

The New Jersey Division of Workers' Compensation has issued a procedural alert to attorneys handling claims of Medicare Elligible Petitioners. Peter J. Calderone, Director and Chief Judge of the NJ agency issued a Memorandum in an effort to establish a formalized and smooth transition with the integration of the mandatory reporting requirements to be initiated this year by The Centers for Medicare and Medicaid Services (CMS).

1. "...parties should not send unsigned settlements to CMS";

2. "...settlements signed by a judge which are not based on a transcribed court record would violate our law since judges must find a settled case resolution fair and just on the court record presented";

3. "Up to date Medicare information must be obtained prior to the entry of a signed workers' compensation order that needs final CMS approval";

4. "When a case is settled, the parties can agree on language in the settlement that a party, usually the petitioner, will be responsible for any additional CMS reimbursements. The petitioner is generally identified since only the petitioner can petition CMS for a waiver from additional payments on hardship or equity grounds. We are advised that such waivers when supported are most often granted;" and

5. "As an alternative, the parties can agree in Orders Approving Settlements (but not Section 20 Orders [lump sum payments in lieu of compensation]) and the judge can insert language in judgments that the parties have the right to reopen the case ifthere are additional Medicare reimbursements and a dispute as to which party is responsible for the payment."

The memorandum goes on to caution the parties that if the parties and the Court are uable to agree upon settlement terms, then a trial and judicial resolution will be required.

Domer on Wisconsin Workers' Compensation Law Published

Thomas and Charles Domer have authored an exhaustive and authoritative analysis of Wisconsin Workers' Compensation Law. Their volume provides excellent practical insight on how to handle the simplest case to the most complex litigation. Wisconsin Workers' Compensation Law furnishes compensation lawyers with historical information and a current analysis of the law. The treatise skillfully identifies trends to aid the practitioner in crafting winning legal arguments in critical and cutting edge issues.

Wisconsin Workers' Compensation Law, 2009 ed. (Vol. 17, Wisconsin Practice Series) By Charles F. Domer, Thomas M. Domer

Petition Filed to Re-Consider California AMA Guide Decision

The California Workers' Compensation Appeals Board (CAWCAB) has decided to review its prior decision of February 27, 2009, challenging the AMA Guidelines. The CAWCAB has issued an Order granting reconsideration and inviting mucus briefs to be filed.

"We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on all counsel in both the Almaraz and Guzman cases."

Alvaraz v. Environmental Recovery Services, et al.

CMS Publishes Memo on Pricing Future Prescription Drug Treatment

The Centers for Medicare & Medicaid Services' (CMS) has published a memorandum outlining the methodology of pricing future prescription drug treatment costs/expenses in Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) proposals.

"The CMS will begin independently pricing future prescription drug treatment costs/expenses in WCMSA proposals beginning June 1, 2009. Effective with complete WCMSA submissions received by CMS’ Coordination of Benefits (COB) Contractor on or after June 1, 2009, where the WC related injury warrant(s) the need of prescription drugs for the ongoing treatment of the WC related injury, CMS’ independent pricing of the prescription drug amount will be calculated and priced using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals. "

US Supreme Court Hears Challenge to Manville Asbestos Bankruptcy Plan

The US Supreme Court once again hear oral argument in a claim arising out of "the longest running tort" in the nation's history, asbestos litigation. The case played to a full house as the Court revisited the 1986 Johns Manville Bankruptcy program and questioned whether the the process that paid out more than $2.8 Billion could be challenged yet again. Plaintiff lawyers, not party to a settlement mediated by former NY Governor Mario Cuomo, argued that they should be allowed to sue various insurers including Travelers Insurance Company.

Travelers Indemnity Co. v. Bailey

Color X-Rays to Beam in on Asbestos Disease

A new radiography technique has been announced to diagnose asbestos related disease. Dr. Michael Harbut, co-director of the National Center for Vermiculite and Asbestos-Related Cancers at the Barbara Ann Karmanos Cancer Institute in Detroit, Michigan reported a new method to assist the diagnose of workers who have been exposed to asbestos, coal dust, beryllium and other heavy metals.

“If we can identify the ’sentinel’ or first cases of asbestosis or lung cancer at an early stage, then we can help identify asbestos exposures in places where it might not have previously been suspected,” said Harbut, who is also chief of the Center for Occupational and Environmental Medicine at Wayne State University.

CMS/MSP Not Going To Require Pre 12/5/1980 Exposure Reporting, BUT....

CMS will not require reporting of claim data where the exposure occurred prior to 12/5/1980 (Effective date of the MSP Act), but if exposure continues after that date, that is another story.

"We were asked about the 12/5/80 date for liability and no fault and the date of incident. Yes we say that in general CMS is determined that it won’t pursue recovery if the date of CMS defined date of incident is prior to 12/5/1980. But then we give an example of a situation with a continuing DOI specifically with respect to exposure.

"If it’s easier for you to think of it that way, if you have a situation with exposure and that exposure continues on or after 12/5/80 it’s really like you’ve got a series of continuous multiple DOIs and we only require you to report the first DOI but yes we do have a recovery claim in that situation.
Transcript of Teleconference 3/24/1980, page 12