AIG Claims Conspiracy by Liberty and Hartford

AIG, an insurer bailed out by the US, now claims that other workers' compensation carriers entered into a conspiracy against them by underreporting their premiums. In an amended complaint filed last week in the Federal Court in Chicago (USDCT N.D. Ill.), AIG alleged that Liberty Mutual and Hartford/ACE entered into a conspiracy to underreport their premiums.

Premium calculations determine contributions to State compensation funds that cover State operated programs for employers unable to secure coverage in the open market. These include high risk employers.

National Workers Compensation Reinsurance Pool v. American International Group Inc., 1:07C-2898, U.S. District Court, Northern District of Illinois

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CMS Terminates Voluntary WC Data Match Program

CMS has formally terminated the voluntary WC Data Match program that it instituted several years ago. With the enactment of Section 111 Mandatory Insurance Company reporting the voluntary program afforded to States and Insurance Company has been terminated.

In a letter to those participating CMS stated:

"This voluntary reporting arrangement has now ended. On July 1, 2009, Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (the MMSEA) became effective for Workers’ Compensation insurance coverage. As of that date, the reporting of Workers’ Compensation information in support of Medicare Secondary Payer (MSP) determinations by CMS became mandatory. All existing voluntary reporting arrangements involving Workers’ Compensation programs are now null and void.

"July 1, 2009, is the date Section 111 reporting became effective, but it is not the date that states will begin to report Workers’ Compensation information under the Section 111 requirements. In summary, states that will be reporting Workers’ Compensation data through the Section 111 process are required to register for Section 111 reporting by September 30, 2009. The testing of the electronic data exchange process will start January 1, 2010. The first “production” file exchanges will start April 1, 2010.

"The process for arranging Section 111 reporting, and all the reporting timeline benchmarks that have been established are described in full on the Section 111 Website, www.cms.hhs.gov/mandatoryinsrep . The current version of the “NGHP User Guide” and additional instructions needed to report Workers’ Compensation information are located on the Website’s “Liability Insurance, Self-Insurance, No-Fault Insurance and Workers Compensation (NGHP)” page."

CMS Updates Submission Process for WCMSAs

CMS has announced two changes for the WCMSA submission process:

1. Updated checklist; and

2. Intent to provide a secure portal for submission of WCMSAs.

"Good news, over 85 responses were received to the "Survey for Workers' Compensation Medicare Set-Aside (WCMSA) Process." The results confirm entities who report workers' compensation settlements that contemplate future medical (including prescription drug) treatments support, overwhelming the availability of a secure Internet web-based portal or interface. Further, the vast majority of responders stated that they are capable of uploading and transmitting documentation in a PDF format into a secure Internet web based portal application.

Based on the results, CMS will be moving forward with its plan to make available a secure Internet web-based portal or interface for the WCMSA submission process."

For more information about CMS and WCMSAs click here.

NY Opens 1 Year Window for 9/11 Claims

NY Governor David A. Patterson has signed into law a bill that permits otherwise time-barred claims against NY municipalities arising out of terrorist activities that occurred on September 11, 2001.

The City of NY just released the 2009 Annual Report concerning the health consequences of the 9/11 attack. The report concludes:

"Results from large epidemiologic studies suggest that probable posttraumatic stress disorder (PTSD) is the most common WTC-related health condition among exposed adults. Probable PTSD means that individuals scored above a certain threshold when responding to a mental health screening questionnaire but have not undergone the psychiatric interview necessary to confirm the diagnosis.

I The risk for developing probable PTSD was higher among those who were:

• Caught in the dust cloud released by the buildings as they collapsed

• Injured as a result of the attacks

• Directly exposed to the events of 9/11, including proximity to the WTC site, witnessing horrific events and knowing someone who was killed or injured in the attacks

• Among rescue and recovery workers, working at the WTC site for a long time or doing tasks outside of their trained area of expertise.

I Several studies indicated that respiratory symptoms, sinus problems, asthma, and loss of lung function were found in people or reported by some who were exposed to WTC dust, including rescue and recovery workers, residents and evacuees. Other studies have suggested that risk of developing sarcoidosis (an inflammation that usually affects the lungs) was elevated in the first few years after the event. Many exposed adults were also diagnosed with or reported having heartburn, acid reflux or gastroesophageal reflux disease (GERD), often in conjunction with other respiratory or mental health symptoms. GERD is a common condition among the general population, however; further research is needed to understand the association between GERD, WTC exposure and other WTC-related health conditions.

I The risk for developing respiratory problems has been examined most thoroughly among rescue, recovery and clean-up workers, and was increased among those who:

• Arrived early at the WTC site • Worked at the WTC site for long periods of time.

I Few studies addressed the impact of WTC exposure on child and adolescent health, especially physical health.

I Whether there is a relationship between WTC exposure and other longer-term illnesses, including cancer, is unknown but clinicians, epidemiologists and other researchers are actively studying this. They also are studying the relationship between WTC exposure and mortality.

I At the time of the report’s publication last year, treatment for WTC-related conditions was available for exposed groups, including children and adolescents, in the NewYork City area."

For additional information on 9/11 Compensation click here.

Medical Costs Soar in the US $55.4 Billion Workers’ Compensation Business

Medical costs continue to soar as a cost in Workers’ Compensation insurance costs nationally. Despite the nations economic downturn a recent report issued by the National Academy of Social Insurance (NASI) reveals that medical spending increased 3.3%.

The costs of the workers’ compensation medical care nationally now represents 49% ($27.2 Billion) of the benefit package. Cash benefits grew a modest .8% over last year.

For about medical benefits and Workers’ Compensation click here.

Risk Assessments for Asbestos Present Difficulties

For decades asbestos has been known human carcinogen and major health hazard causally related to asbestosis, lung cancer and mesothelioma. It is still not banned in the United States. Recent efforts to provide statistics assessments of the hazard haven’t proven to be unsuccessful.

A study published in the September 2009 issue of The American Journal of Industrial Medicine concludes, “None of the efforts to use statistical models to characterize relative cancer potencies for asbestos fiber types and sizes have been able to overcome limitations of the exposure data. Resulting uncertainties have been so great that these estimates should not be used to drive occupational and environmental health policy. The EPA has now rejected and discontinued work on its proposed methods for estimating potency factors. Future efforts will require new methods and more precise and reliable exposure assessments. However, while there may be genuine need for such work, a more pressing priority with regard to the six regulated forms of asbestos and other asbestiform fibers is to ban their production and use.”

The Urgent Need for Workers Compensation Flu Pandemic Planning

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization’s (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting from regulatory work disruptions to prevent the spread of disease maybe massive. While workers’ compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers’ compensation system to deliver benefits as promised may be seriously burdened.

There has been a global reaction to the 2008 influenza pandemic. On April 25, 2009, the WHO director-General Dr. Margaret Chen declared the H1N1 virus outbreak as a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow.

The United States has structured its response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permits the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows or the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waives penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President may issue an emergency declaration under The Stafford Act to co-ordinate emergency relief under State and Federal programs, ie. use and distribution of anti-viral medications.

The Federal government has sweeping powers under the PHS that could disrupt employment throughout the country. Recommendations for school closings will impact children and staff well beyond the approximate 700 facilities that were closed in the Spring of 2009 during the H1N1 initial outbreak. The Federal government under the PHS has authority to quarantine (interstate and border) and to isolate. An Executive Order (E.O. 13375, April 2005) enumerates the “quarantainable diseases.” Travel restrictions may be imposed to limit the spread of a communicable disease. Employees may not be permitted to board flights under either voluntary airline restrictions or through the Federally imposed “Do Not Board” lists.

These closings and restrictions have raised issues as to what programs, if any, will be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak. The workers’ compensation system could be requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions may curtail employment that will trigger the implementation of State workers’ compensation benefits. The employer and the workers’ compensation insurance carriers will be required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers’ compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.

Workers’ Compensation claims arising out of the influenza pandemic of 2009 will need to fit into the convoluted framework statutory acts and regulation. Reimbursement from the usual collateral third-party reimbursement sources may be restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation including The “Public Readiness and Emergency Preparedness Act" (PREP Act) limits liability of others under certain specific emergency circumstances.

The enormity of the Pandemic presents a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers’ Compensation programs have adapted to emergencies before including natural disasters and terrorist attacks. The urgency of the situation requires that the system be vaccinated now.

For more articles on Workers' Compensation and the Flu Pandemic click here.