Medicare Secondary Payer Recovery Contractor Town Hall Meeting 4/29/10

Changes in the MSPRC Conditional Payment Process for Liability Insurance, No-Fault Insurance, and Workers' Compensation Cases


On April 29, 2010 from 1:00pm – 3:00pm (EDT), the MSPRC will host a Town Hall Meeting regarding
"Changes in the MSPRC Conditional Payment Process for Liability Insurance, No-Fault Insurance, and Workers' Compensation Cases."
This Town Hall Meeting will provide education on the New Conditional Payment Notice and Process, as well as updates on:

• The MSPRC Recovery Process & Timelines
• The Rights and Responsibilities Letter
• Proof of Representation vs. Consent to Release
• What's new with the MSPRC

Space is limited, to reserve your Webinar seat now : Click Here!

https://www1.gotomeeting.com/register/164660640


REMINDER: As space is limited, if more than one person from your organization is participating, we encourage you to convene in one conference or meeting room.


Click here to read more about Medicare Secondary Payer Act and workers' compensation.

Workers Memorial Day April 28, 2010

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The AFL-CIO has announced Workers Memorial Day commemoration.


"Decades of struggle by workers and their unions have resulted in significant improvements in working conditions. But the toll of workplace injuries, illnesses and deaths remains enormous. Each year, thousands of workers are killed and millions more are injured or diseased because of their jobs. The unions of the AFL-CIO remember these workers on April 28, Workers Memorial Day.

"The first Workers Memorial Day was observed in 1989. April 28 was chosen because it is the anniversary of the Occupational Safety and Health Administration and the day of a similar remembrance in Canada. Every year, people in hundreds of communities and at worksites recognize workers who have been killed or injured on the job. Trade unionists around the world now mark April 28 as an International Day of Mourning.


CDC reports:
"Workers Memorial Day recognizes those workers who died or sustained work-related injuries or illnesses during the previous year. In 2008, a total of 5,071 U.S. workers died from occupational injuries (1), and 49,000 deaths annually are attributed to work-related illnesses (2). In 2008, an estimated 3.7 million workers in private industry and 940,000 in state and local government had a nonfatal occupational injury or illness; 40%--50% of these workers were transferred, placed on work restrictions, or took time away from work (3). An estimated 3.4 million workers were treated in emergency departments for occupational injuries and illnesses in 2007, and approximately 94,000 were hospitalized (CDC, unpublished data, 2010).

Coaching the Witness to Cry on Cue

A recent trial level decision discounted the testimony of the claimant  after the trial judge made a finding that the witness had been coached. How do you determine if the witness was coached or merely prepared by his or her attorney in anticipation of  testimony? How do you define the fine line between permissible and unethical? What factors are essential in making that finding?


Excellent lawyers spend hours with their clients in advance of testimony. Is it merely to discuss what to wear to court, and what to eat the day before? Sometimes witnesses are so anxious that lawyer needs to calm them down by explaining the routine of trial, the dress code required and the need to get a full night's sleep before the hearing. Sometime there are so many documents and collateral testimony that it is helpful to review them with a client before his or her testimony.


While clients need to know the parameters of what is expected in a judicial proceeding, feeding the answers to a client to mimic like a ventriloquist act is obviously over the line. Telling the client to be honest and accurate as well as responsive is appropriate. The witness needs to know that they shouldn't guess if they don't know an answer to a question.


Attorney's objections made at a hearing can be phrased in such a fashion as to signal or suggest an answer to the witness. That would appear to be coaching is objectionable. Likewise a spectator in the courtroom signaling in a non-verbal manner to a witness could be deemed to be prejudicial error and grounds for a mistrial.


A NJ workers' compensation court characterized coaching when an injured worker started to cry on the witnesses stand, when asked a question as to how he felt. "Overall, the JOC found petitioner's testimony appeared “to be well coached and practiced. [He] cried as if on cue when his counsel asked how he felt.” 


Credibility seems to be the essential criteria in judicial witness evaluations. Judges, especially in a non-jury, administrative action, must take all aspects of the conduct and appearance of the witness into consideration. Determining if an individual is making a non-credible, or coached cry, is an extremely difficult call to make. Applying the law to the facts is a difficult enough judicial task. Even if it is only a workers' compensation proceeding, asking judges to make a determination if a cry is "coached" seems to be an extraordinary responsibility.


Valle v I.M.Supermarkets, Docket # a1910-08, NJ App Div 2010. (Decided April 16, 2010)


Click here to read more about witnesses and workers' compensation.

Rescue Legislation for Missouri Second Injury Fund Fails

The Missouri legislature failed to pass legislation that would rescue the state's Second Injury Fund (SIF) from financial collapse. The SIF has been long targeted for extinction by Industry in Missouri. The Attorney General order the SIF to stop making payments in October 2009.


The national trend for decades has been the closing of SIF's throughout the country. That trend has been advocated by those who claim that Federal legislation now supports hiring the handicapped and that the dollars paid into the SIFs are not being utilized to assist the payment of total disability awards as intended by the acts. The State of New Jersey has recently reported that the NJ Fund is also in financial difficulty. 

Click here to read more about The Second Injury Fund.

Football Players File Claims for Brain Damage

Football, the sport of humans clashing heads together, is now subject to a growing wave of workers' compensation claims for dementia. Recent studies have shown that football players have suffered head injuries as a result of multiple concussions suffer chronic traumatic encephalitis (CTE). 


At recent discussion on Legal Talk Network reviewing this topic in depth, Christopher Nowinski, President and CEO of the Sports Legacy Institute and former Harvard football player, participated. He remarked that former football players have donated their brains for pathological research concerning CTE and its association with multiple concussions playing the sport.


It has been alleged that CTE results in early dementia, early onset of Alzheimer's Disease and multiple other brain disorders. The average football player sustains over 1,000 concussions each game.


Recently claims have been filed by several players against the National Football League in California. Massachusetts attorney, Alan S. Pierce, explains that that the statutory prohibitions make California a fertile jurisdiction for workers compensation claims.  In additional to the medical causation issue, it is anticipated that players will be confronted with conflict of laws issues in selecting an appropriate jurisdiction(s) to insure a maximum recovery.


As employment relationships become more geographically complex due to interstate and international relationships, the courts have been confronted with an ever-increasing problem as to what forum's law will apply to specific situations.  In most instances, courts have adopted their local law as long as the site of the injury, or the site of the contract, or the site of the employment relationship was within their state.  In certain instances, the court must go beyond those factors and assess whether another forum's law would provide the certainty of result which would occur in the their own state.  The court looks towards fairness to the employee in selecting the choice of law to be applied.  An overwhelming consideration is that public policy demands that the injured employee be cared for adequately within their jurisdiction.


Additionally rates of compensation vary among the states as well as laws defining what constitutes an occupational exposure and the allocation of liability where multiple jurisdiction, employment and events occur.


It is anticipated that these claims will increase and will proliferate in multiple-jurisdictions throughout the country. Since it it is impossible to avoid injuries in a sport designed for body contact sport, the courts and legislatures will be faced  ultimately with  public policy consideration concerning the sport and continuing to mandate workers' compensation benefits.


Click here to read more about jurisdiction and workers' compensation.

Is The Virtual Doctor a Cure for Workers' Compensation

The American Association of Retired People (ARRP) reports in May/June2010 edition of their magazine that the concept of online appointments is taking hold in the medical system.  Doctors are making house calls by computer or phone. Patients will no longer have to sit in waiting rooms watching "Medical TV" or read magazines while waiting to see their doctor.

One of the primary benefits under the Workers' Compensation Act is that of medical benefits.  Medical benefits are mandated by the Act, and require the employer to furnish the injured worker with medical, surgical and other treatment and hospital services as are necessary "to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ" if possible. The injured worker's exclusive remedy to receive medical treatment is in accordance with the provisions of the Workers' Compensation Act.  The employer can be compelled to provide prompt and adequate medical treatment, and an action at common law against the workers' compensation insurance carrier is barred. The employee's right to medical benefits is independent of other remedies available under the Workers' Compensation Act.  The injured worker need not wait until final adjudication of his claim for permanent disability in order to proceed with a claim for medical benefits.

This year OptumHealth is about to launch NowClinic. The site is compatible with Internet Explorer, Firefox and Safari. Using Chrome will not allow you to access the site. The planned cost, according to AAARP is  $45 for a ten minute dialog.

Will this trend be adaptable to workers' compensation programs is a major question. With so much paranoia concerning fraud on both sides of the program involving into RICO claims, many employers and insurers might be apprehensive in launching such a system. On the other hand, the cost savings benefits to employers and insurance companies maybe monumental. Clinical care, diagnostic testing and pharmaceutical dispensing may also become incorporated into the program. Some delays maybe eliminated for claims that are not contested or denied.  Once into the "system" the chance for straying to unauthorized medical care could be reduced.

As technological expands in the health profession, the use of virtual care system will probably become more available. Tailoring them to the needs of the workers' compensation program will remain a challenging opportunity to improve the benefit system.

To read more about health care and workers' compensation click here.


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Case Advances Challenging MSP Reimbursement Procedures

A Federal Court Judge has permitted discovery to go forward in a potential class action challenging the reimbursement procedures of the U.S. Department of Health and Human Services (HHS) being utilized under the authority of the Medicare Secondary Payer Act (MSP).

The case pending in Arizona questions the authority of the HHS to seek reimbursement in liability claims of conditional payments paid by the Federal government. The plaintiffs are seeking declaratory and injective relief from the HHS procedures. They allege that the HHS has exceeded its authority under the MSP and that the plaintiffs have been denied due process.

The claim challenges the requirement that reimbursement be made within 60, in advance of an appeal or waiver. The case also alleges that the reimbursement claims asserted by HHS are in excess of the actual amount conditionally expended and object to the interest charges on the erroneous amounts asserted.

A motion for class action certification was filed on March4, 2010. Determination of that issue has been held in abeyance as discovery proceeds.

The issues  the Court will determine in this case have been identified as follows:

1.Whether the HHS can require prepayment of an MSP recovery claim before the correct amount is determined through administrative appeal procedures; and

2. Whether the HHS can make plaintiff’s attorneys financially responsible if they do not hold or immediately tender the litigation proceeds.

The Court, in permitting discovery to go forward against the HHS, determined the need to ascertain, not only as to the specific plaintiffs, limited in the Administrative Record, but generally:

·    -----The frequency the appeal process is actually utilized and whether it is burdensome to beneficiaries; and

·    -----The error rate and whether that error rate is extraordinary high in MSP recovery claims; and

·    -----Whether there is a need for current lack of procedural protections for beneficiaries and their attorneys.

Hard v. Sebelius, No. cv 09-134 TUC DCB, 2010 WL 1452932 (D. Ariz), Decided April 12, 1020.

Click here to read more about Medicare Secondary Payer Act and workers' compensation.