Monthly Archives: February 2013

Cancer Risk, Workplace Carcinogens and a Government Report

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

Our law firm recently completed successful litigation involving eight families against various chemical companies. A member of each family got cancer from working at a local plant where industrial solutions were used to make rubber products.

Stating the obvious, cancer is universally bad, regardless of how much money a person has; what their religious or political views are; how old they are; or how/where/why they got cancer. That being said, I think workers especially need to be aware of the dangers and exposures to carcinogens that can occur because of chemicals in the workplace. According to a United States Department of Labor Occupational Safety and Health Administration (OSHA) website, “Carcinogens are agents that can cause cancer. In industry, there are many potential exposures to carcinogens. Generally, workplace exposures are considered to be at higher levels than for public exposures. Material safety data sheets (MSDSs) should always contain an indication of carcinogenic potential.” 

Respected colleague Jon Gelman from New Jersey shares his thoughts on the subject in this blog post at http://workers-compensation.blogspot.com/2012/10/romney-regulation-risk-of-cancer.html. And I thank him for sharing the op-ed resource from a recent Sunday’s edition of The New York Times. 

According to the Times piece, lobbyists associated with the chemical industry want to “shoot the messenger” by limiting or getting rid of the U.S. government’s Report on Carcinogens. Because if workers don’t know about carcinogens in their workplace, they won’t get cancer? Or more accurately, at least they won’t be able to tie that cancer to their workplace? Tell that to the American Cancer Society, whose web site includes a page specific to carcinogens and uses various sources, both national and international, to determine what carcinogens are.

Mr. Gelman also mentions in his blog post that certain lobbyists and politicians want to limit the regulation of these chemicals, which the Times story calls “scientific consensus” for their listing as cancer-causing carcinogens. It’s very challenging for consumers to know what substances, either naturally occurring or made by humans are safe to eat and use. To take that confusion into the workplace by limiting the information available to workers to be as safe as possible in their jobs, especially when long-term consequences like cancer are a possibility, is a shame.

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.

Voter Fraud / Worker’s Comp Fraud Same Scare Tactics

Studies indicate that employee worker’s compensation fraud is minimal

I’ve said several times in this blog that I view most news through the prism of a lawyer represented injured workers. This morning’s headline noted “Democrats Reject Fraud Tales – Say Make Voting Easier”. Republicans have focused on the voter fraud issue in an attempt to limit voting from those who they assume will vote against them (employees, poor people, people of color). Republicans have resisted efforts at mandatory early voting periods and same day registration to make it easier to cast ballots. Their argument is eerily similar to the scare tactics employed by employers and insurers in worker’s compensation fraud. 

Studies indicate voter fraud throughout the United States is virtually absent.

However, statistic belie these claims. Studies indicate voter fraud throughout the United States is virtually absent. In the same manner, employers and insurers routinely harp on the issue of employee worker’s compensation fraud (alleged malingering, etc.) and studies also indicate that employee worker’s compensation fraud is minimal at best (in Wisconsin studies suggest less than one-sixth of one percent). On the other hand, employer fraud (misreporting classifications of employees, classifying employees as Independent Contractors rather than employees) is rampant and costs the industry millions of dollars.

President Obama signs the SMART Act Into Law

The SMART Act will modify the process through which the Medicare program is reimbursed when another payer (for example, a liability insurer) is responsible for a beneficiary’s medical costs.

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

As reported by Medivest Benefits Advisors, President Obama signed the Strengthening Medicare and Repaying Taxpayers (Smart) Act into law as part of H.R. 1845, on January 10, 2013. This bill represents one of the most significant changes in the Medicare Secondary Payer (MSP) conditional payment recovery process since the MSP Statue was enacted in 1981.

The SMART bill is the result of over four years of effort from the Medicare Advocacy Recovery (MARC) Coalition, which represents virtually every group of stakeholders impacted by the Medicare Secondary Payer (MSP) statute. The Congressional Budget Office estimated that the SMART Act would save Medicare $45 million from 2013-2022 by making it easier for payers to reimburse Medicare.

The Smart Act amends the Medicare Secondary Payer Statue by adding a new clause at the end of the existing statute that provides for the following:

  • Section 201 – Expedited Repayment, Web Portal and Right of Appeal. This section requires CMS to maintain and make available a timely updated website so settling parties can determine how much is owed to CMS for conditional payments, during the settlement process. It also requires CMS to provide a timely appeals process and to promulgate related regulations, if the settling parties believe there is a discrepancy in the conditional payment statement.
  • Section 202 – Threshold. Establishes that an actuarial single threshold amount be set for exemption from conditional payment reimbursement, where the expected recovery amount is less than the cost to recover.
  • Section 203 – Section 111 Penalties. Makes the $1,000 per day Mandatory Insurer Reporting (MIR) non-reporting penalty prevision discretionary by changing the statutory language from “shall be subject” to “may be subject to”. Also, this section requires CMS to publish formal regulations specifying situations where the penalty will not be imposed due to good faith efforts to comply.
  • Section 204 – Social Security Number. Directs CMS to modify the MIR reporting requirements so that reporting of social security numbers are not required.
  • Section 205 – Statute of Limitations. Creates a three-year statute of limitations for conditional payment recovery actions brought by the government.

The changes made to the  provisions for penalties should come as a relief to carriers, patients, and their lawyers and doctors who were previously under threat of stiff penalties in any case of mis-reporting or under-reporting to CMS.  Changing the language to “may be subject to (penalties)” allows for penalties to be ordered in cases of fraud or misrepresentation but does not require penalties in cases where mistakes are made.

The Flu: A Compensable Event and Its Complications

Source: US CDC Reports widespread flu activity

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

For the first time in more than a decade, the seasonal flu is becoming a pandemic  that is causing major business disruptions, and illness and death in the workplace. Despite urgent calls from public health officials and declarations of states of emergency, the flu continues to aversely effect businesses and employees throughout the country.

The laxity amongst employers and employees in getting flu vaccinations, a lack of paid sick days, a shortage of medicine to treat the flu and consequences occurring because of poorly designed vaccination programs, may stretch the nations workers’ compensation system to new limits.

Step One
Take time to get a flu vaccine like this young boy from an older female nurse.

Take time to get a flu vaccine.

  • CDC recommends a yearly flu vaccine as the first and most important step in protecting against flu viruses.
  • While there are many different flu viruses, a flu vaccine protects against the three viruses that research suggests will be most common. (See upcoming season’s Vaccine Virus Selection for this season’s vaccine composition.)
  • Everyone 6 months of age and older should get a flu vaccine as soon as thecurrent season’s vaccines are available.
  • Vaccination of high risk persons is especially important to decrease their risk of severe flu illness.
  • People at high risk of serious flu complications include young children,pregnant women, people with chronic health conditions like asthma, diabetes or heart and lung disease and people 65 years and older.
  • Vaccination also is important for health care workers, and other people who live with or care for high risk people to keep from spreading flu to high risk people.
  • Children younger than 6 months are at high risk of serious flu illness, but are too young to be vaccinated. People who care for them should be vaccinated instead.
Step Two

Take everyday preventive actions to stop the spread of germs like this mother teaching her young child to wash hands.

Take everyday preventive actions to stop the spread of germs.

  • Try to avoid close contact with sick people.
  • If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.)
  • While sick, limit contact with others as much as possible to keep from infecting them.
  • Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
  • Wash your hands often with soap and water. If soap and water are not available, use an alcohol-based hand rub.
  • Avoid touching your eyes, nose and mouth. Germs spread this way.
  • Clean and disinfect surfaces and objects that may be contaminated with germs like the flu.
  • See Everyday Preventive Actions Adobe PDF file [257 KB, 2 pages] andNonpharmaceutical Interventions (NPIs) for more information about actions – apart from getting vaccinated and taking medicine – that people and communities can take to help slow the spread of illnesses like influenza (flu).
Step Three

Take flu antiviral drugs if your doctor prescribes them like this older woman listening to her doctor.

Take flu antiviral drugs if your doctor prescribes them.

  • If you get the flu, antiviral drugs can treat your illness.
  • Antiviral drugs are different from antibiotics. They are prescription medicines (pills, liquid or an inhaled powder) and are not available over-the-counter.
  • Antiviral drugs can make illness milder and shorten the time you are sick. They may also prevent serious flu complications. For people with high risk factors Adobe PDF file [702 KB, 2 pages], treatment with an antiviral drug can mean the difference between having a milder illness versus a very serious illness that could result in a hospital stay.
  • Studies show that flu antiviral drugs work best for treatment when they are started within 2 days of getting sick, but starting them later can still be helpful, especially if the sick person has a high-risk health or is very sick from the flu. Follow your doctor’s instructions for taking this drug.
  • Flu-like symptoms include fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills and fatigue. Some people also may have vomiting and diarrhea. People may be infected with the flu, and have respiratory symptoms without a fever.

Read more sbout the “flu” and workers’ compensation:

Oct 23, 2012
Laboratory Workers and Contacts Warned of Accidental Flu Pandemic. Safety in the laboratory workplace is of critical concern as many research laboratory employees suffer from exotic diseases that become workers’ …
 
Oct 24, 2009
As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in …
 
Nov 27, 2009
The OSGA directive closely follows the prevention guidance issue by The Centers for Disease Control (CDC) to prevent the spread of H1N1 flu. The purpose of the compliance directive is “to ensure uniform procedures when …
 
Sep 15, 2009
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 …

Misclassification Fraud Across the Country

North Carolina Governor Bev Perdue Signed Executive Order 125

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

“Misclassification” is a poorly chosen word to describe fraudulent conduct by employers who misclassify the status of their employees. For example, a roofing company may have 30 roofers doing the actual work but these workers are classified as “independent contractors” instead of employees. Why would they do that? At the end of the year these workers are sent a 1099 tax form that reports the wages paid, but the employer does not make any deductions for Medicare or unemployment, and doesn’t pay for workers’ compensation insurance. If you have a roofing company and you properly classify your employees, you are at a competitive disadvantage in bidding on jobs. Honest businesses are hurt by misclassification, and taxpayers are hurt because they pick up medical bills and other expenses created when one of these “independent contractors” gets hurt.

Another form of misclassification is when a construction company with 85 employees reports to its workers’ compensation insurance company that 75 of these people are staff workers, which results in a significantly reduced premium. Obviously, a construction worker is at greater risk of injury than an office worker. Again, the honest company who accurately reports the status of its employees is at a competitive disadvantage with the dishonest employer.

New York, New Jersey, Massachusetts, Virginia, Michigan, Florida, California, Texas and the vast majority of states across the country have been looking into this issue for several years and they have been aggressively prosecuting dishonest employers who try to game the system. North Carolina has finally joined these states. On August 22, 2012, Governor Beverly Perdue issued Executive Order 125, which created a task force to study this issue and try to get different agencies to communicate with each other and share information to identify employers who are failing to pay employee taxes. Hopefully, this task force will figure out how to enforce existing law. This blog will follow the progress of this task force. Stay tuned.

Employee Wellness Programs And Workers' Compensation

Injuries incurred in an employee wellness or health fitness program, event or activity may not be covered by workers’ compensation

Wisconsin-based employers like:

have found that investment in onsite training facilities pays off for their employees in terms of lower worker’s compensation claims and health insurance claims. Companies interviewed noted on-site training facilities drastically reduced the number of on the job injuries, partly from attention given to fitness and preventative health care. Many Wisconsin-based have well-established employee fitness centers. A Journal/Sentinel article referred to exercise classes, water polo, swimming lessons, bike races and even a triathlon where participants received a turkey for their efforts.

Such “wellness” programs pose some interesting issues for worker’s compensation in Wisconsin. And as a lawyer representing injured workers, I look at almost everything I read through this prism. Injuries incurred in an employee wellness or health fitness program, event or activity designed to improve the physical well-being of the employee are not considered in the course of employment. That means they aren’t covered under workers’ compensation unless the program, event or activity is mandatory or compensated. That mandatory or compensated requirement applies whether the program is on or off premises.

Our Court of Appeals, however, found compensable injury when an on-duty firefighter was injured while playing basketball at a nearby park not on the employee premises. Courts have interpreted ‘mandatory’ to include Continue reading

Who Can Provide Worker’s Comp Medical Treatment?

Medical treatment expense now eclipses indemnity benefits paid in Wisconsin for worker’s compensation. The employer must supply medical treatment reasonably required to cure and relieve from the effects of the injury.

Treatment can be medical, surgical, chiropractic, psychological, pediatric, or dental and includes hospital treatment, medical and surgical supplies, crutches, and artificial members and appliances.

…Wisconsin employees have their choice of treating practitioners…

Unlike some states where the employees must obtain treatment from a panel of physicians, Wisconsin employees have their choice of treating practitioners (except in genuine “emergency” situations where the employer can choose). Ohio, for example, just announced it has expanded the list of providers who can treat injured workers and strengthen certification requirements for those providers.

Ohio’s Bureau of Worker’s Compensation expanded health care professionals to include adult day care facilities, anesthesiology assistants, independent diagnostic testing facilities, and sleep laboratories.

While in Wisconsin, the employee has a great deal of freedom of choice in selecting a treating practitioner, some limits apply. Practitioners must be licensed to practice in Wisconsin. Out-of-State treatment is compensable if Continue reading