Monthly Archives: July 2013

The SMART Act and Workers’ Compensation

Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.

            Medicare should not pay medical bills that are the primary responsibility of a third party.  When they do, they want to be reimbursed, and all parties understand that concept, but the problem is the lengthy delays and lack of due process. The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and entitled “Strengthening Medicare Secondary Payer Rules.”

            Section 201 requires CMS to maintain a secure web portal with access to claims and reimbursement information. Payments for care made by CMS must be loaded onto the portal within 15 days of the payment being made. The portal must also provide supplier or provider names, diagnosis codes, dates or service, and conditional payment amounts. Moreover, the portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award. After several steps, the parties may download a final conditional payment amount from the website. If there is a dispute over the conditional payment amount, CMS must respond/resolve the dispute within 11 days or the proposed resolution by the claimant/applicable plan will be deemed accepted. In terms of appeals, CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. This process will go into effect around April of 2013. 

            Section 202 states that by November 15th of each year (beginning in 2014), CMS is required to calculate and publish a threshold for liability claims. If an amount owed is under that threshold amount, CMS is barred from seeking repayment.  Section 205 states the statute of limitations for conditional payment recovery by CMS is three years after the receipt of notice of a settlement, judgment, award, or other payment made.

            The SMART Act applies to workers’ compensation cases, so it is important to understand the law and how it will be applied in the future. Read it and follow its implementation closely.

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Slow Recovery Affects Workers’ Compensation Benefits and Costs

Today’s post comes from guest author Kit Case from Causey Law Firm.

A Press Release by the National Academy of Social Insurance

 

WASHINGTON, DC – Workers’ compensation benefits declined to $57.5 billion in 2010 according to a report released today by the National Academy of Social Insurance (NASI). The drop in workers’ compensation benefits was largely due to a 2.1 percent drop in medical benefits for injured workers. Employers’ costs for workers’ compensation also fell by 2.7 percent in 2010. As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.

 

“As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.”

 

“Employers’ costs as a percent of payroll declined in 43 jurisdictions,” said John F. Burton, Jr., chair of the study panel that oversees the report. “This decline is probably due to the slow pace of the recovery, with many jurisdictions still experiencing relatively high unemployment rates.”

 

Workers’ Compensation Benefits, Coverage, and Costs, 2010

Total

2010

Change   Since 2009 (%)

Covered workers (in thousands)

124,454

-0.3%

Covered wages (in billions)

$5,820

2.6%

Benefits paid (in billions)

$57.5

-0.7%

Medical benefits

$28.1

-2.1%

Cash benefits

$29.5

0.7%

Employer costs (in billions)

$71.3

-2.7%

Per $100 of Covered Wages

2010

Change   Since 2009 ($)

Benefits paid

$0.99

-$0.03

Medical benefits

$0.48

-$0.03

Cash benefits

$0.51

-$0.01

Employers’ costs

$1.23

-$0.06

Source: National Academy of Social Insurance, 2012.

 

The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2010, is the fifteenth in the series that provides the only comprehensive data on workers’ compensation benefits for the nation, the states, the District of Columbia, and federal programs. 

 

“This report represents the first time the Academy has released employers’ costs by state.”

  

This report represents the first time the Academy has released employers’ costs by state. For a table showing employers’ costs for all fifty states and the District of Columbia, refer to Table 12 (page 34).

Most states reported a decrease in the number of workers covered but an increase in covered wages between 2009 and 2010. During the same period, the total amount of benefits paid to injured workers declined in 26 jurisdictions and increased in 25. As a share of payroll, benefits paid to injured workers fell by three cents to $0.99 per $100 of payroll in the nation.

The share of medical benefits for workers’ compensation has increased substantially over the last 40 years. During the 1970s medical benefits nationally accounted for 30 percent of total benefits, whereas in 2010 the share of benefits paid for medical care was almost 50 percent. Experts attribute this trend to the rising cost of health care.

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What Does That Stand For? Commonly Used Acronyms in Workers’ Compensation Cases

Today’s post comes from guest author Brianne Rohner from Rehm, Bennett & Moore.

Every profession has certain turns of phrase or acronyms they use on a daily basis that, to the layperson, mean very little and may only serve to add confusion to an already difficult issue. The legal profession and the representation of injured workers is no different. Injured workers often find themselves traveling down a confusing road armed only with directions written in an unfamiliar or foreign-sounding language. The experienced attorneys at our firm navigate clients down this road on a daily basis.  

Below is a list of commonly used acronyms to assist in understanding what is happening with your workers’ compensation case when everyone around you is suddenly speaking another language. Please keep in mind that the accompanying definitions are very general, and you should seek the advice of an experienced workers’ compensation attorney for more information or assistance with your case. Please also see the links for other blog posts for more information on some of these issues.    

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Denied Or Partially Denied For Social Security Disability? A Special Ruling Means You May Be Entitled To A Re-Hearing

If you filed for Social Security disability and appeared at a hearing in the Queens Office of Disability Adjudication and Review before any of the following Administrative Law Judges – Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld, David Z. Nisnewitz, and Hazel C. Strauss, you may soon be entitled to a new hearing before a different Administrative Law Judge. You may soon receive, or have already received, a “Notice of Proposed Class Action Settlement and Fairness Hearing” from Social Security. 

This notice concerns a lawsuit, Padro, et al. v. Astrue, brought against the Social Security Administration by the law firm of Gibson, Dunn, & Crutcher and the Empire Justice Center. The lawsuit was filed to address allegations of “general bias” against disability claimants by the five judges named above. In settling the lawsuit, the Social Security Administration is not admitting any wrongdoing by any of the judges. 

Under the terms of the proposed settlement, any individual who received an unfavorable or partially favorable decision from one of these judges dated after January 1, 2008, is eligible to have a new hearing. The hearing will be conducted by a different judge than the judge who issued their first decision. However, if an individual filed a lawsuit in District Court and the judge’s decision was upheld by the court, that individual will not be entitled to a new hearing in front of a different judge.

The proposed settlement has not been finalized and the terms are subject to change. There is a hearing scheduled to finalize the settlement on July 24, 2013. Once the settlement is finalized, all affected individuals will receive another notice from Social Security advising them of their right to a new hearing. If you receive such a notice, you will have sixty (60) days to notify Social Security that you wish to have a new hearing.  If you believe that you might be entitled to a new hearing, but have not received a notice, you should contact your local Social Security office as soon as possible.

If you are interested in having our office represent you at your hearing, please contact our office as soon as possible so that you can schedule a free initial consultation with our staff.

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Shortcuts at the Social Security Administration Mean Mistakes

Today’s post comes from guest author Roger Moore from Rehm, Bennett & Moore.

Recently, the Wall Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore’s Harbor Hospital, who worked for Social Security part time for about 10 years. He said “People who shouldn’t be getting [disability] are getting it, and people who should be getting it aren’t getting it”. In my experience Continue reading →

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Why Overturning DOMA Is a Win for Employee Rights

Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

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Diesel Fumes and Lung Cancer

Diesel Fumes Cause Lung Cancer

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

Lung cancer is the leading cause of death for men and women in the United States. It’s greater than breast and colon cancer in women and greater than prostate, colon, pancreatic and liver cancer in men. If diagnosed early there is a 70-80% survival rate for 5 years, and a low-dose CT scan of the chest can detect 60-70% of lung cancers at an early stage. Unfortunately, there has been no significant progress in the treatment of lung cancer in 40 years and between 10,000–20,000 occupational lung cancer deaths occur each year in the United States.

One area of concern is the relationship between diesel exhaust exposure and lung cancer. In June of 2012 the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans, and studies of underground miners support that statement and also indicate that others who are around diesel fumes may be at an increased risk. Toxic chemicals in diesel gas are nitrogen oxides, sulfur oxides, carbon monoxide, benzene, PAHS (polycyclic aromatic hydrocarbons), aldehydes and nitro-PAHS.

Railroad workers, miners, truck drivers, bus operators, longshoremen and others who have been heavily exposed to diesel fumes are obviously at greater risk than those with less exposures, but even minimal exposures may cause harm. In urban areas, like lower Manhattan, there is concern that diesel exposures may be a public health hazard and detection systems have been placed in areas to collect exposure data. As for workers who have experienced intense, short-term duration to diesel fumes, a chemical called 1-hydroxypyrene may be elevated in urine, but the test for this marker is not performed by most commercial laboratories. The Mount Sinai – Irving J. Selikoff Center for Occupational & Environmental Medicine is studying diesel exposure and may be a good resource for future information, as well as the National Clean Diesel Campaign: www.epa.gov/diesel.

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Suicides in the U.S. Military: An Epidemic; What about Workers’ Compensation?

Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.

In 2012, suicides in the U.S. military were at a record high of 349, which was higher than the 295 American combat deaths in Afghanistan in 2012. This number is up from 301 in 2011. The Pentagon has had a difficult time dealing with this epidemic, which likely stems from military personnel being in combat for more than a decade in Afghanistan and Iraq, complicated by anxiety over being forced out of the military due to a “shrinking force.”

In 2011, 65% of soldiers who attempted suicide had a history of behavioral problems; however, only 45% of those who actually killed themselves had such a history. If there are signs that these service members were asking for help, they were not getting the help that they needed.

What’s interesting is that the U.S. military keeps statistics on suicides, and when the numbers go up to alarming rates the  hope is that something will be done to investigate. For years, workers’ compensation lawyers have heard about suicides from employees who did not get proper medical care, who could not handle the abuse that sometimes happens within the system, and who could no longer stand the pain of permanent injuries, disability and resulting depression. But where are the statistics on these deaths? The insurance industry either has this information or it could get it. As a matter of public policy, should they be required to report it?

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