Insuring Disabled Seniors and The Public Option

Disabled workers over the age of 65 have difficult decisions to make concerning health insurance. Those who rely upon workers’ compensation and Medicare to cover all their medical costs are in for a rude awakening. John D. Podesta and colleagues reported difficulties in the present system that seniors utilize.  “The gaps in coverage, the high cost of insurance, and the quality of care that consumers receive are the most frequently cited problems" in the present medical delivery system. Disabled workers will also have their strife compounded by the fact that Congress anticipates an increase of 15% in basic Medicare premiums next year.

Workers’ compensation insurance usually covers medical conditions that "arise out of and are in the course of employment." Treatment extends to medical care that is reasonable and related to cure the work related condition and relieve the symptoms. Workers’ compensation was not intended to any for conditions that are not work related.

Medicare provides coverage to disabled workers and those who are over 65 years of age. It does not extend coverage to those conditions that are work related. In fact, Medicare, under the Medicare Secondary Payer Act (MSP), will seek reimbursement from the injured employee for those medical conditions related to the employment, but Medicare may have accidentally or conditionally paid for.

The Federal system now keeps a tight rein to avoid duplication of benefits. As of July 1, 2009, the workers’ compensation insurance carriers are now subject to mandatory reporting of those eligible or anticipated to be eligible for workers’ compensation benefits. Medicare seeks to participate in the review of any settlement in workers’ compensation by eligible beneficiaries through an elaborate voluntary scheme of workers’ compensation set aside agreements (WCMSA).

The coverage scenario is complicated further by so called “Medigap policies” sold by private insurance companies that provide supplemental health insurance to those on Medicare for services and benefits not covered by the Federal government.  The Kaiser Family Foundation reports, that “Most Medicare beneficiaries (89%) had some form of supplemental health insurance coverage in 2007. More than a third of all beneficiaries (34%) had coverage from an employer-sponsored plan, 22% were in Medicare Advantage plans, 17% purchased supplemental insurance (Medigap) policies, and 15% were covered by Medicaid (generally those with very low incomes and modest assets). Eleven percent [4.48 million] had no supplemental coverage [emphasis added].”

Those who lack coverage, avoid or forgo, medical care. Underlying medical conditions, even those that are work related, may become aggravated or accelerated. The “gap” in coverage for the some disabled workers, that exists in the system, creates additional risk factors for not only those that fall within the gap, but also as to general community health and well being.

The gap in disability insurance converge will need to be debated as Congress goes forward in the health care debate. As Speaker Nancy Pelosie (D-Calif) surveys Congress in anticipation of her final draft of a "public option," the discussion continues in Washington. A universal approach is warranted to bridge the gap for affordable and meaningful coverage.

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CDC Reports Flu Widespread - Is the US Workers’ Compensation System Ready?

The US Centers for Disease Control (CDC) has announced that Flu is now “widespread” in 41 States and that deaths attributed to both pneumonia and influenza have increased and exceed what is normally expected for this time of the year.  The workers’ compensation system has never faced a challenge as extensive as what appears unfolding on the horizon. The method and manner of the delivery of benefits will be further complicated by, the broad spectrum of needs from protecting the spread of the disease, as well as treating those who are ill.

Forty-one states are reporting widespread influenza activity at this time according to the CDC. They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.  

Last month the CDC released a guide to business to prepare for the threat of the Flu. Despite the fact that the CDC has directed ill healthcare workers to stay home, workers’ compensation commentators continue to infer that Flu claims should be absolutely defended, and in fact, ill healthcare workers and sick employees should be held to a higher standard of proof to obtain benefits.

As challenges to mandatory vaccination programs meander thorough the courts, and voluntary/mandatory absenteeism programs are implemented, the ability of the system to quickly reimburse wages for lost time from work and provide medical benefits for treatment of the contagious disease, remains questionable. Should claims be filed by even a percentage of those workers who become ill, the system, which itself is anticipated to be overtaxed, may not be able the handle the volume on an emergent basis.

So far there has been silence about  workers’ compensation flu pandemic planning. While the Federal and State governments have rules and regulations in their arsenal to meet the challenge, this is an issue where workers’ compensation should be first in line to deliver benefits to sick workers.

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Nebraska Adopts Workers Compensation Lump-Sum Settlements Without Court Review

The State of Nebraska has moved forward administratively and now permits the settlement of workers’ compensation claims without Court approval. The parties need only file a release with the Court. The injured workers must be represented by counsel and the settlements are limited to those involving lump-sum amounts.

“Notice Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.

“48-136 The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers’ compensation insurer, if any, and in accordance with the Nebraska Workers’ Compensation Act. A copy of such settlement, duly verified by all parties, shall be filed with the Nebraska Workers’ Compensation Court and no  such settlement shall be binding unless the settlement is in accordance with such act.”

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RICO Claim Alleging Underlying Workers Compensation Fraud Dismissed

A Federal Judge dismissed a case where the alleged misrepresentation of employment status in an underlying State court workers’ compensation case was pleaded as an alleged basis  of a RICO (Racketeer Influenced and Corrupt Organizations Act) action18 U.S.C. § 1961(c). The court held that a federal racketeering action, filed as a RICO action arising  out of a workers’ compensation claim utilizing mail and wire, must demonstrate multiple verifiable activity of facts demonstrating fraudulent action in order to sustain the burden of proof.

The Court reasoned:

"It is well established that “misrepresentations of the law are not actionable as fraud, including under the mail and wire fraud statutes because statements of the law are considered merely opinions and may not be relied upon absent special circumstances.” Sosa v. DIRECTV, Inc., 437 F.3d 616, 621 (9th Cir.2006). Therefore, Plaintiff’s allegations that the Macedos Defendants committed wire and mail fraud by virtue of falsely claiming that Defendant Jose Moreira was an employee of the Macedos Construction Co., Inc. in order obtain Workers’ Compensation benefits is not actionable as mail and wire fraud."

Virginia Sur. Co., Inc. v. Macedo, Slip Copy-Unpublished, 2009 WL 3230909, D.N.J., September 30, 2009 (NO. CIV.A.08-5586JAG)

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CDC Issues H1N1 Flu Guidance to Healthcare Personnel-"stay home"

In an urgent need to protect healthcare workers from H1N1 Flu, the today CDC has issued guidance on infection control measures to prevent transmission of 2009 H1N1 influenza in healthcare facilities. The CDC continues to recommend that healthcare workers take time away from work if they are ill. The issue unanswered is whether workers' compensation insurance will pay temporary disability benefits for the absence?


The CDC has defined healthcare personnel as, "....For the purposes of this guidance, healthcare personnel are defined as all persons whose occupational activities involve contact with patients or contaminated material in a healthcare, home healthcare, or clinical laboratory setting. Healthcare personnel are engaged in a range of occupations, many of which include patient contact even though they do not involve direct provision of patient care, such as dietary and housekeeping services. This guidance applies to healthcare personnel working in the following settings:  acute care hospitals, nursing homes, skilled nursing facilities, physician’s offices, urgent care centers, outpatient clinics, and home healthcare agencies.  It also includes those working in clinical settings within non-healthcare institutions, such as school nurses or personnel staffing clinics in correctional facilities. The term “healthcare personnel” includes not only employees of the organization or agency, but also contractors, clinicians, volunteers, students, trainees, clergy, and others who may come in contact with patients."

Healthcare personnel who develop a fever and respiratory symptoms should be:
• Instructed not to report to work, or if at work, to promptly notify their supervisor and infection control personnel/occupational health.
• Excluded from work for at least 24 hours after they no longer have a fever, without the use of fever-reducing medicines.

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Are Driving Distractions Within the Course of the Employment?

The US Department of Transportation recently held a national summit on the issues arising from distracted driving. The facts presented were certainly convincing that distracted driving is a leading cause of accidents.   

• Distracted driving is dangerous. Distraction from cell phone use while driving (hand held or hands free) delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (University of Utah)
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Carnegie Mellon)
  
• 80 percent of crashes are related to driver inattention. There are certain activities that may be more dangerous than talking on a cell phone. However, cell phone use occurs more frequently and for longer durations than other, riskier behaviors. Thus, the #1 source of driver inattention is cell phones. (Virginia Tech 100-car study for NHTSA)
  
• Drivers that use handheld devices are four times as likely to get into crashes serious enough to injure themselves. (Insurance Institute for Highway Safety)
  
• Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. (NHTSA)
• Research shows that the worst offenders are the youngest and least experienced drivers: men and women under 20 years of age. (NHTSA)
  
• On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone. (National Safety Council)

Kristin Backstrom, AAA Foundation for Traffic Safety, testified that, “People who wouldn't get drunk and drive somehow think it's OK to text and drive - which is just as dangerous.

Public policy has always swayed the direction of the legislature. The facts surrounding distracted driving  will probably no exception. Whether this activity can be considered by the courts, as "arising out of and in the course of the employment," or whether the legislature will merely bar compensability if distracted driving is a cause of an accident, has yet to be determined. 
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Medicare's Aggressive Debt Collection Practice

A recent article in Mother Jones reports upon the adverse consequences of Medicare's aggressive debt collection practices upon the aging population. The article describes the evolution of the Medicare's debt collection practice, from initially using the attorneys for the beneficiaries as debt collectors, though the new shift of responsibility to insurance carriers through mandatory reporting.

The author predicts, "The prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare's bureaucracy, has kept some elderly folks from receiving money that's rightfully owed them."
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