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Showing posts sorted by relevance for query burton. Sort by date Show all posts

Monday, May 6, 2013

Private Sector Workers Compensation Costs Down For 7th Year

Professor Emeritus John F. Burton Jr., reports in his latest research report that private sector costs for workers' compensation costs are down for the 7th year straight. This gives rise to the next question as to whether workers' are just being denied workers' compensation benefits and the system has eroded.

"Issue 6 of the Workers’ Compensation Resources Research Report (WCRRR) examines
Professor Emeritis
John F. Burton Jr.
the employers’ costs of workers’ compensation. Part I relies on data from the Bureau of Labor Statistics (BLS) to examined national trends from 1986 to 2012. For private-sector employers, costs dropped for the seventh year in a row and represented 1.80 percent of payroll in 2012, the lowest figure since 1986. For all non-federal employers, costs of workers’ compensation dropped to 1.79 percent of payroll in 2012, the lowest figure since the data series began in 1991.

"Part II examines BLS data on the differences in the employers’ costs of workers’ compensation due to factors such as geographical location, industry, union status, and occupations of the firm’s employees. The variations of workers’ compensation costs among industries were significant in 2012, ranging from 4.47 percent of payroll in construction to 0.63 percent of payroll in the financial industry.

Wednesday, May 6, 2015

Professor John F Burton Jr: Illinois Proposed Changes Are Obectionable

The former chair of the 1972 National Commission on Workers' Compensation told the Illinois legislature yesterday that the proposed changes to the Illinois Workers' Compensation Act will degrade the system and reduce benefits to injured workers. Profession Emeritis John F. Burton, Jr., yesterday presented a statement to the Committee of the Whole before the Illinois House of Representatives.
Professor John F. Burton Jr.

Monday, August 25, 2014

The Father of the 11th Circuit Court Decision

Today's post is authored by Peter Rousmaniere and shared from
The Florida 11th Circuit Court decision on Aug. 13 appears to be the first state court decision in many years to declare an entire workers’ compensation statute as unconstitutional. The fingerprints of the Dean of Workers’ Compensation Research John Burton are all over Judge Jorge Cueto’s reasoning.
Since the 1970s, Burton, with a law degree and PhD in economics, has been the leading academic scholar in workers’ compensation, even now years after his retirement from a faculty position at Rutgers University. Burton surely thinks that this decision is long coming. So, what’s his complaint?
Cueto wrote that through the years, the state has cut back permanent partial disability benefits so severely that the state “no longer provides any benefits for this class of disabled worker.”
 Burton’s writings indicate that he holds that whatever permanent disability benefits there are in Florida, they are so low and PPD so significant, that the entire workers’ comp system in Florida is inadequate. Cueto agrees.
He cites National Council on Compensation Insurance estimates that legislative changes in 1979, 1990, 1994 and 2003 cut PPD benefits severely. Per Burton, Florida “eviscerated the permanent partial benefit system.” The current benefits are “less than available during the 1970s and markedly lower than...
[Click here to see the rest of this post]

Monday, November 22, 2010

Congress Told Workers Compensation is a Deteriorating System

The former chair of the 1972 National Commission on Workers' Compensation told Congress that the present system is deteriorating and a new course of action is warranted. Profession Emeritis John F. Burton, Jr., last Wednesday testified before The Subcommittee on Workforce Protections of the Congressional Committee on Education and Labor.

Professor Burton told Congress that during the last 20 years he has observed the "...deterioration in adequacy and equity of state workers' compensation programs..." He reported that "the decline in workers' compensation cash benefits in the states during the 1990's is explained by ....changes in workers' compensation provisions and practice than  is explained by the drop in workplace injuries and disease during the decade."

Burton proposed that Congress consider new legislation to prohibit costs shifting from workers' compensation to Social Security Disability Insurance (SSDI). He advised the Subcommittee that cost shifting was continuing because 15 states were permitted to continue "reverse offset" provisions, the Social Security Administration (SSA) was paying benefits to workers who were not totally disabled under workers compensation acts, and a larger number injured workers were not qualifying for workers' compensation benefits.

As Professor points out, the aging workforce further complicates the burden placed upon the nation's Medicare system. With the erosion of the doctrine that workers' compensation takes the worker as it finds him or her, medical treatment for pre-existing conditions will be a growing cost for Medicare and a cost-shift from the workers' compensation system. The NY Times reported that, "Nearly one-fourth of Medicare beneficiaries have five or more chronic conditions. They account for two-thirds of the program’s spending."

A "reaffirmation" of "Federal standards" as enunciated in the 1972 National Commission report were recommended by Burton.  Additionally, he called upon Congress to enact legislation requiring employers and/or their insurance carriers reimburse Social Security for permanent disability cash benefits paid by Social Security for disability flowing from a work related event or disability.

Wednesday, November 12, 2014

John Burton Reports That The Workers Compensation Insurance Industry Underwriting Results Continue to Improve in 2013

The current issue of the Workers’ Compensation Resources Research Report examines the profitability of the workers’ compensation insurance industry in 2013 as reported by A.M. Best. The operating ratio, which is the most comprehensive measure of underwriting results because it considers investment income, decreased from 93.7 in 2012 to 82.9 in 2013.. An operating ratio of less than 100 indicates that the workers’ compensation insurance industry is profitable, and thus the industry was profitable in 2013. The operating ratio of 82.9 in 2013 means the industry earned $17.10 of profits for every $100 of net premiums. Since 1993, the workers’ compensation insurance industry has been profitable in 17 of the 20 years – all but 2001, 2002, and 2011.

This issue provides for the first time information on profitability of the workers’ compensation insurance industry at the state level relying on data from the National Association of Insurance Commissioners. Of the eight states examined in the article, only two had underwriting profits (combined ratios were less than 100), but in six of these states, workers’ compensation carriers had profits after investment income was included.

Download an order form for Issue 8 of the WCRRR here.

*John F. Burton, Jr. is Professor Emeritus in the School of Management and Labor Relations (SMLR) at Rutgers University and Professor Emeritus in the School of Industrial and Labor Relations at Cornell University. He is a Member of the Study Panel on National Data on Workers’ Compensation of the National Academy of Social Insurance (NASI). Burton previously served as Dean of SMLR and as a faculty member at Cornell University and the University of Chicago. He has a law degree and a Ph.D. in Economics from the University of Michigan.

Thursday, November 19, 2009

Shifting Occupational Claim Responsibility to Social Security

Recent Workers' Compensation reforms enacted in the 1990's are more likely to effect older workers  who are then more likely to to apply for Social Security Disability Benefits (SSDI). The reforms are now causing an enormous increase in number of denials of workers' compensation claims. At a recent conference hosted by NASI (National Academy of Social Insurance), Professor John F. Burton Jr. reported on the results of his recent study that has been submitted for publication.

Professor Burton reported that in 1999 between 80% to 93.8% of occupationally disease medical costs were not considered compensable and the costs were being shifted to the SSDI program. He concluded that, "...a substantial infusion of research funds are necessary to clarify the relationships between the Workers' Compensation and SSDI Programs."

To read more about Professor Burton and workers' compensation on the blog, click here.

Thursday, May 1, 2008

Opposition Continues to Swell Against Utilization of the AMA Guides 6th ed

Resistance continues to mount against adoption of the AMA Guides to Impairment 6th edition. Joining the growing chorus of opposition are John Burton, a leading expert in workers' compensation, and the Attorney General of Tennessee who issued an opinion against adoption of the 6th Edition.

Workers’ compensation expert, John Burton, at a presentation to the NY State Workers’ Compensation Board expressed his disfavor in adoption to the AMA Guides 6h edition to determine disability. He recommended that all 40 US State jurisdictions and Canada abandon the AMA Guides altogether.

Burton said, "My concern about the AMA guide ... is that it's simply not evidence-based. It's ignoring the evidence that's available to do it right," "I think the AMA has now shown it's incapable of doing it right and this thing ought to be referred to the Institute of Medicine to look at this issue and figure out how to do a decent rating system."

Additionally, the automatic adoption of the AMA Guides 6th Ed. is unconstitutional states Attorney General of the State of Tennessee. “While there is not any controlling authority in Tennessee on this issue, and while Tenn. Code Ann. § 50-6-102(2) is defensible, this provision is vulnerable to attack as an unconstitutional delegation of legislative authority in violation of Tenn. Const. art. II, § 3, because by making the “most recent” edition of the AMA Guides that is in effect on the date of the employee’s compensable injury the applicable edition, § 50-6-102(2) may be construed as incorporating future changes of the AMA Guides to Tennessee’s statutory scheme.”

As the debate continues concerning the adoption of the AMA Guides to Impairment 6th Ed. the issue continues to focus on whether the AMA Guides to Impairment should be utilized at all to determine disability in at all in a workers’ compensation claim.

Thursday, February 17, 2011

A National Celebration of the Workers' Compensation Centennial

Guest Blog by Alan S. Pierce

The year 1911 saw the enactment of this country’s first state-based Workers’ Compensation laws. The effects of the Industrial Revolution began some decades earlier and made it necessary to change the way the costs associated with workplace injuries and deaths were compensated.

Wisconsin claims credit for the first constitutional statute (earlier attempts failed constitutional muster) with Massachusetts and nine more states not far behind.  Thirty-six other states followed by the end of the decade.

So it’s no surprise that 2011 will see various commemorations of this social, economic, and legal milestone.  

Here in Massachusetts, generally acknowledged as the nation’s second state to pass a Workers’ compensation statute (signed into law by Governor Eugene H. Foss, July 28, 1911) plans have been underway to mark this auspicious occasion.

On April 7, 2011, Massachusetts will be holding a centennial commemoration that has attracted interest across the country.

The American Bar Associations's (ABA) Section on Tort, Trial and Insurance Section (TIPS) and the Workers’ Compensation and the Section of Labor and Employment Law (LEL) has joined in the planning of this hallmark event, and we, along with the Labor and Employment Law Committee, will be holding The 2001 Midwinter Seminar & Conference in Boston April 7-9, 2011 to coincide with the Massachusetts event.

Before detailing our plans in Massachusetts, it is worthwhile to briefly examine the historical origins of a concept of a no-fault-based system of compensating for job-related injuries and deaths.  Who then can lay claim to the first model of a modern Workers’ Compensation system?  

Early History of Workers' Compensation

According to Gregory Guyton in A Brief History of Workers’ Compensation, Iowa Orthopedic Journal, 1999, in approximately 2050 B.C., in ancient Sumeria (now Iraq), the law of Ur contained in Nippur Tablet No, 3191 provided for compensation for injury to a worker’s specific body parts.  Under ancient Arab law, the loss of a thumb was worth one-half the value of a finger. The loss of a penis however was compensated by the amount of the length lost. The manner of estimating that however, is a fact lost to history. Similar systems existed and are contained in Hammurabi’s Code in 1750 B.C. as well as in ancient Greek, Roman, and Chinese law. The common denominator in most if not all of these early schemes was the compensation for “schedules” for specific injuries which determined specific monetary rewards. This concept of an “impairment” (the loss of function of a body part) as distinct from a “disability” (the loss of ability to perform specific tasks remains with us today
Jumping ahead a couple of thousand years.

Stephen Talty in Empire of Blue Water: Captain Morgan’s Great Pirate Army, Crown Publishing, (2007) describes the legendary English privateer Capt. Henry Morgan (of the rum company fame) who in the mid-1600s had a ship’s constitution that provided for the “recompense and rewards each one ought to have that is either wounded or maimed in his body, suffering the loss of any limb, by that voyage.” The loss of a right arm was worth 600 pieces of eight; the left arm:500; right leg:500, left leg: 400, and so forth.

Today’s workers’ compensation laws owe their origin to Prussian Chancellor Otto von Bismarck who in a political move to mitigate social unrest, created the Employer’s Liability Law of 1871.  In 1884 he established Workers’ Accident Insurance.  This program not only provided monetary benefits but medical and rehabilitation benefits as well.  The centerpiece of von Bismarck’s plan was the shielding of employers from civil lawsuits; thus the exclusive remedy doctrine was born.

Centennial Commemoration in Massachusetts

Plans to commemorate this centennial originated with the Massachusetts Academy of Trial Attorneys, which for the past decade hosted an annual Workers’ Compensation Bench/Bar Dinner.

On April 7, 2011, the Massachusetts Academy of Trial Attorneys, the Massachusetts Bar Association, and the Department of Industrial Accidents will host a centennial commemoration of workers’ compensation, not only in Massachusetts but the country as well.

The focus will be on the recognition of 100 years of workers’ compensation remembering how this unique area of law originated and developed with a look toward the future and examining forces at work that may change how workplace injuries are compensated.  A planning committee comprised of representatives of the claimant and insurer bar, Department of Industrial Accident representatives, and other stakeholders in the system have been meeting periodically for almost three years.  

Our plans have three major components:  a symposium featuring four of the nation’s leading scholars of workers’ compensation as an economic, labor relations, and legal concept; a book covering the history of the Massachusetts Industrial Accident Board, and dinner bringing everyone together at the Rose Kennedy Ballroom at the Intercontinental Hotel in Boston.  The other bar groups coming to Boston to join us will be holding their own programming, including three mornings of informative continuing legal education program as part of the ABA TIPS/Workers’ Compensation Committee and Labor and Employment Law Committee’s annual midwinter meeting.  

The ABA’s College of Workers’ Compensation Lawyers will also hold its annual dinner inducting the 2011 Class of Fellows on Saturday, April 9, 2011. 


The symposium to be held during the afternoon of April 7, 2011, will be chaired by Prof. Emeritus John Burton, perhaps the leading authority on workers’ compensation, both nationally and internationally.  Burton, who has taught economics and labor relations at Rutgers and Cornell Universities, was President Nixon’s appointed Chair of the 1972 National Commission on Workers’ Compensation which resulted in recommendations responsible for the extended period of major workers’ compensation reforms that closed out the last quarter of the 20th century.  

Prof. Burton has invited Emily Spieler, Dean of Northeastern University Law School, Dr. Richard Victor, Executive Director of the Workers’ Compensation Research Institute, and Prof. Les Boden of Boston University to join him. Among the subjects to be explored are a discussion of federal and state responsibility for workers’ compensation; the extent of coverage of injuries and disease; the impact of changes in healthcare and what “universal” healthcare may mean for workers’ compensation systems; adequacy and equity of benefits among other topics.

 Book on The Massachusetts Industrial Board

Attorney and TIPS member, Joseph Agnelli Jr. of the Keches Law Group, has authored The “Board” A History of the First Century of the Massachusetts Industrial Accident Board and the Workers’ Compensation Act.

Agnelli’s book contains a comprehensive history of workers’ compensation in Massachusetts focusing on how our Industrial Accident Board was originally organized.  The book profiles many of the fascinating commissioners, judges, and attorneys who help shape the practice of workers’ compensation law at the Department of Industrial Accidents.

The book also features a copy of the Workers’ Compensation Statute signed into law by Governor Eugene H. Foss on July 28, 1911; a copy of the first insurance policy (policy no. 1) issued to the Everett Mills by the Massachusetts Employee’s Insurance Association (M.E.I.A.), the entity that was to become Liberty Mutual Insurance Company.

According to Agnelli’s forward:  “When pondering a suitable way to commemorate such a momentous event, it became clear that something needed to be written about the countless numbers of individuals who have played a role in its long history, to the legislators who were instrumental in its passage of 1911, the members of the first Industrial Accident Board in 1912, the men and women who have served as either Commissioners or Administrative Judges on the Board, those who pioneered the early practice before the Board, and to past and current personalities, this book is a tribute to their efforts in perpetuating the spirit of the Act.”

Symposium Dinner

The Symposium Dinner on Thursday evening, April 7, 2011, will be held in a remarkable venue, a ballroom that can accommodate up to 700 people.  Early reservations are a must.  To purchase dinner tickets or for further information, contact OR contact Alan Pierce at 978-745-0914.
Alan S. Pierce practices in Salem Massachusetts. He has authored and edited several publications including Massachusetts Workers' Compensation Law, Workers' Compensation and the Law, and Workers' Compensation: Issues and Answers. Alan currently serves as chair-elect of the American Bar Association workers' compensation section and will be the national chairperson in 2010. He is a charter Fellow in the College of Workers' Compensation Lawyers.

Other Resources
Registration Information: 2011 Midwinter Meeting
Program Agenda: 2011 Midwinter Meeting

Related articles

Thursday, October 6, 2011

The New Danger of Thirdhand Smoke: Why Passive Smoking Does Not Stop at Secondhand Smoke

"Passive smoking exposure is a topic of great concern for public health because of its well-known adverse effects on human health (International Agency for Research on Cancer 2004). Two news articles on this topic were published in the February 2011 issue of Environmental Health Perspectives (Burton 2011; Lubick 2011). Lubick (2011) discussed the global health burden of secondhand smoke, and Burton (2011)emphasized a new and alarming consequence of 
smoking in indoor environments—“thirdhand smoke”—a term first coined in 2006 (Szabo 2006).

"Thirdhand smoke is a complex phenomenon resulting from residual tobacco smoke pollutants that adhere to the clothing and hair of smokers and to surfaces, furnishings, and dust in indoor environments. These pollutants persist long after the clearing of secondhand smoke. They are reemitted into the gas phase or react with oxidants or other compounds present in the environment to form secondary contaminants, some of which are carcinogenic or otherwise toxic for human health (Matt et al. 2011). Thus, thirdhand smoke exposure consists of unintentional intake (mainly through inhalation but also via ingestion and dermal routes) of tobacco smoke and other related chemicals that occurs in the absence of concurrent smoking. Exposure can even take place long after smoking has ceased, through close contact with smokers and in indoor environments in which tobacco is regularly smoked.

Citation: Protano C, Vitali M 2011. The New Danger of Thirdhand Smoke: Why Passive Smoking Does Not Stop at Secondhand Smoke. Environ Health Perspect 119:a422-a422.

For over 4 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Tuesday, September 20, 2016

Workers' Compensation "Demise of the Grand Bargain" Seminar Papers Online

The 2016 workers' compensation "Grand Bargain" seminar sponsored by the Pound Civil Justice Institute has posted the draft seminar papers online in PDF format and are available for download. The 2016 Academic Symposium is entitled, "The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century."

Monday, May 23, 2011

Latest Workers Compensation Data Reviewed by Professor John Burton

The Workers' Compensation Resources Research Report (Issue) has just been published. The report is edited by Professor Emeritus John F. Burton, Jr

This issue of the Workers’ Compensation Resources Research Report(WCRRR) examines the employers’ costs of workers’ compensation based on the latest data from the Bureau of Labor Statistics. Part I provides information on the national costs of workers’ compensation from 1986 to 2010. For employers in the private sector, costs dropped for the fifth year in a row and were 1.95 percentage of payroll in 2010. For all non-federal government employees, the employers’ costs of workers’ compensation were 1.87 percent of payroll, continuing a five-year trend of declining costs. Part II of the WCRRR provides data on the differences in the employers’ costs of workers’ compensation due to factors such as geographical location, industry, union status, and occupations of the firm’s employees. The variations of workers’ compensation costs among industries were significant, ranging from 5.75 percent of payroll in construction to 0.63 percent of payroll in the financial industry.

For more information and to order a copy click here.

Thursday, September 10, 2015

John Burton Reports Private Sector Costs Down For 9th Year

Professor Emeritus, John F. Burton, Jr., reports in the Workers' Compensation Research Report that for the ninth consecutive year there have been declining costs.

Issue 10 of the Workers’ Compensation Resources Research Report (WCRRR) examines the employers’ costs of workers’ compensation. Part I relies on data from the Bureau of Labor Statistics (BLS) to examine national trends from 1986 to 2014. For private-sector employers, costs dropped for the ninth consecutive year and represented 1.77 percent of payroll in 2014, the lowest figure since 1986. For all non-federal employers, which includes state and local government employers in addition to private sector employers, employers’ costs of workers’ compensation were 1.76 percent of payroll in 2014, which was the ninth consecutive year of declining costs and the lowest figure since the data series began in 1991.

The National Academy of Social Insurance (NASI) also publishes estimates of the employers’ costs of workers’ compensation for all non-federal employers. The results of the two estimates diverge after 2010, with the NASI data showing three years of increases in employers’ costs from 2011 to 2013 (the latest year with NASI data) while the BLS data show nine years of declines through 2014.

Part II provides information based on the BLS data on the variations among employers’ costs of workers’ compensation in 2014 depending on the employers’ region, industry, the occupations of the firms’ employees, firm size, and union status. The variations among industries were significant, ranging from 4.71 percent of payroll in construction to 0.57 percent of payroll in the financial industry.

Download WCRRR Issue 10 Order Form

Friday, July 17, 2009

Hot Topics in Workers' Compensation 2009 Seminar

Wednesday, October 07, 2009
5:00 PM to 9:00 PM
New Jersey Law Center, New Brunswick

This seminar will provide practitioners with new strategies and techniques to handle workers' compensation cases in the changing economy.This fast-paced program features a panel of some of the most respected New Jersey Workers' Compensation Judges and attorneys, who will review and provide insight on the top issues and cases that have emerged during the past year.

As an attendee, you’ll pick up practical pointers that have proven successful in matters ranging from jurisdictional issues through coverage of employment. The program will expand your horizons and broaden your practice potential into expanding in developing areas of the law. Make plans to register today!

Program Agenda:
• The New Rules For Preparing, Defending and Processing Motions For Emergent Medical Care That Require A Showing Of “Irreparable Harm.” - Hon. Peter J. Calderone

• The Standard Of Proof Required To Establish Liability In A Multiple Employer And/Or Successive Insurance Carrier Orthopedic Claim - Nancy J. Johnson, Esq.

Differences Among Jurisdictions in Cash Benefits - Professor Emeritus John F. Burton, Jr.

• What Should Be Considered In Addressing Injured Workers’ Needs For Adapting A Home As A Barrier-Free Environment - Jerome L. Eben, AIA. PP. CID

• The Evidence Burden Required To Successfully Establish Compensability In A Claim Involving Secondary Fragrance Exposure In The Workplace - Kenneth A. DiMuzio, Sr., Esq.

• How And When An Employer Or Subsidiary Can Assert A Lien On Settlement Proceeds From A Third Party Recovery - John J. Jasieniecki, Esq.; James Jude Plaia, Esq.


Author: “New Jersey Workers’ Compensation Law” (3rd Ed., Thompson-West)
Law Offices of Jon Gelman (Wayne)

Speakers include:
Director and Chief Judge, Division of Workers’ Compensation (Trenton)

Former Chair, National Commission on State Workmen’s Compensation Laws
Professor Emeritus, School of Management & Labor Relations (SMLR),
Rutgers University (New Brunswick)

Past President, New Jersey Society of Architects
Jerome Leslie Eben - Architect (West Orange)

Green, Jasieniecki & Riordan (Florham Park)

Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
Weston, Stierli & McFadden (Piscataway)
(at New Brunswick)

Offices of James Jude Plaia (Verona)

Hoffman DiMuzio (Woodbury)

Click here to print paper registration form.
Register online

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Register by 8/14/09
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Advance registration closes at noon of the day preceding the program.
After that time you may still register, space permitting, for the Door
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Wednesday, November 20, 2013

Sleep Therapy Seen as an Aid for Depression

Will workers' compensation provide benefits for sleep therapy to avoid or treat depression? Today's post was shared by AJ Chavar and comes from

Curing insomnia in people with depression could double their chance of a full recovery, scientists are reporting. The findings, based on an insomnia treatment that uses talk therapy rather than drugs, are the first to emerge from a series of closely watched studies of sleep and depression to be released in the coming year.
The new report affirms the results of a smaller pilot study, giving scientists confidence that the effects of the insomnia treatment are real. If the figures continue to hold up, the advance will be the most significant in the treatment of depression since the introduction of Prozac in 1987.
Depression is the most common mental disorder, affecting some 18 million Americans in any given year, according to government figures, and more than half of them also have insomnia.
Experts familiar with the new report said that the results were plausible and that if supported by other studies, they should lead to major changes in treatment.
“It would be an absolute boon to the field,” said Dr. Nada L. Stotland, professor of psychiatry at Rush Medical College in Chicago, who was not connected with the latest research.
“It makes good common sense clinically,” she continued. “If you have a depression, you’re often awake all night, it’s extremely lonely, it’s dark, you’re aware every moment that the world around you is sleeping, every concern you have is magnified.”
The study is the first of four on sleep and...
[Click here to see the rest of this post]

Saturday, May 29, 2010

CMS Claims No Statute of Limitations May Exist in a Recovery Action

The Centers for Medicare and Medicaid Services (CMS) have filed a reply brief in US v Strickler, et al, now pending in the US District Court in Alabama, alleging that the government’s recovery action was valid and filed within the six years Statute of Limitations. “The answer is clear: the United States’ claim, which seeks reimbursement based on a statutory right to recover monies conditionally paid by Medicare, is contractual and implied in law. Therefore, the six-year limitations period applies.”

The government states that the question for the question is whether the recovery action falls within a contract express or implied in law or fact, which subjects the United States to the six-year limitations period in § 2415(a), or in tort where a 3 year statute would apply.

Alternatively the government advances the proposition that if the could determines that none of the above categories apply then no statute of limitations would apply. “As noted in the United States’ Omnibus Response (at 20 n.10), if the Court were to decide that this claim falls into none of these categories, then no limitations period applies. See, e.g., United States v. Palm Beach Gardens, 635 F.2d 337, 341 (5th Cir. 1981) (holding that cause of action under the Hill-Burton Act was neither tort nor contract, and therefore the United States could pursue its cause of action at any time).”

Should the six year statitute apply, this it would accrue when, “…MSP claims accrue when the United States can “demonstrate” that a primary plan, or an entity that received money from a primary plan, was “required or responsible” to make payments under a primary plan. 42 U.S.C.§ 1395y(b)(2)(B)(ii) and (iii); see also Glover v. Liggett Group, Inc., 459 F.3d 1304, 1309 (11th Cir. 2006) (noting that defendants have no obligation to reimburse Medicare until the defendants’ responsibility to pay a beneficiary’s expenses has been demonstrated).”