4-19-2011; UPDATE—Will changes to the Medicare Secondary Payer Statute assist in resolving Medicare issues and finally give us a way to appeal what are sometimes incomprehensible MSA values?

As previously reported, on March 14, 2011, the Strengthening Medicare and Repaying Taxpayers Act of 2011 (SMART Act) (H.R. 1063) was introduced in the U.S. House of Representatives. The SMART Act proposes major amendments to the Medicare Secondary Payer Statute (MSP). Track progress here: http://www.govtrack.us/congress/bill.xpd?bill=h112-1063       

The SMART Act’s reform proposals target multiple areas of MSP compliance including: Among its provisions, the proposal would:

·         Require CMS to respond  to requests  for conditional payment information within set timelines

·         Provide MSP appeal rights

·         Set MSP threshold exemptions

·         Set MSP statute of limitations

Debate continues behind the scenes but some grumbling regarding streamlining the process creating more costs for taxpayers appears to be misguided in the mind of this writer as it seems to be a cop-out for someone who doesn’t want to be held accountable for the work CMS employees are paid to perform. Plus noting that CMS can fine payers up to $1,000 per day for failing to provide complete information, there will be a pool of funds for payment of bills outside the statute of limitations unless CMS simply doesn’t track anything. The legislation would impose safe harbors to prevent fines against payers that are making good-faith efforts to provide the information so those who cooperate with the system will be safe and there is an incentive to provide all information rather than play “medical bill roulette” and hope for the statute to run. The proposes 3-year statute of limitations is a reasonable time frame on legal actions to be brought by the U.S. when compared to other SoLs.

We will continue to keep you advised of changes as they occur and as previously noted, Shawn R. Biery has been granted the Medicare Set-aside Consultant Certified (MSCC) credential. Please feel free to contact Shawn R. Biery, J.D., M.S.S.C. at sbiery@keefe-law.com with any questions regarding Medicare Set-Aside issues.

4-19-2011; Interesting Appellate Court ruling for municipal risk managers--squad car running over officer’s foot held to not be an injury specifically related to an act of duty and...

The Appellate Court reversed the Circuit Court and upheld a Pension Board decision which voted unanimously to deny Officer Filskov’s application for a line of duty disability pension benefit in Filskov v. The Board of Trustees of the Northlake Police Pension Fund, No. 1-09-3151 (April 5, 2011). Officer Filskov was a member of a gang suppression unit and was injured when a fellow officer inadvertently put a squad car in drive and drove over Filskov’s foot while he was moving items which were in the back seat. The officers were leaving a police station and had yet to resume their patrol. They were not acting in response to a call for service when the incident occurred.

The Pension Board decision indicated Filskov faced the same risk ordinarily assumed by any citizen who chooses to become a passenger in a vehicle. Filskov admitted he and the other officers were not responding to a call or in any way involved in an act of police duty inherently involving a special risk.

Section 3-114.1(a) of the Pension Code states:

Disability Pension - - Line of duty (a) if a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension...

Section 5-113 of the Code defines the term “act of duty” as “any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” 40 ILCS 5/5-113 (West 2008). The Appellate Court examined the applicable case law and stated, for a police officer to have suffered a line of duty injury the facts need to demonstrate the “officer faced a special risk associated with serving as a police officer at the time of the injury.”

With this in mind the Court stated the Pension Board’s decision was not clearly erroneous because the incident in question, entering a vehicle, did not involve a “special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” The Court noted Filskov was engaging in an ordinary risk that all citizens assume when they either enter a vehicle or move items off the seats of vehicles. Thus, the Circuit Court decision was reversed. Please note this officer would still be entitled to a disability pension, just not a line-of-duty disability pension.

Presiding Justice Cunningham dissented. He felt Filskov was engaged in police work when he was injured because his assignment was to enter a vehicle and drive to a location to perform his police duties. Justice Cunningham believed Filskov met his burden of proving his injury occurred within the narrow parameters of performing an act of police duty.

We agree with the majority decision as all of us enter vehicles as a part of everyday life. We do not feel an injury suffered while doing so is associated with a special risk of police work as required by the Code. This article was researched and written by Matthew Ignoffo, J.D. Please do not hesitate to reply or contact Matt about it at mignoffo@keefe-law.com.

4-19-2011; Looking like you are cooperating with voc rehab when you aren’t—CareerBuilder provides more reasons Illinois WC risk managers, adjusters and defense lawyers hate “lazy-lot”...

In a ruling named E.R. Moore v. Industrial Commission, the members of our Illinois Supreme Court created a new and unprecedented change to the Illinois Workers’ Compensation Act. In our view, this was “judicial legislation” because their new concept doesn’t appear anywhere in the IL WC Act.

In that claim, they started the concept of “odd-lot” total and permanent disability, ruling an injured worker whose doctors found could perform some work but was unable to locate a job fell into a netherworld they called “odd-lot” total and permanent disability. We have always called the same concept “lazy-lot” because what the ruling did was create a cottage industry of vocational counseling in which the counselors on both sides spent thousands to confirm a claimant made a bona fide job effort or didn’t make a bona fide job effort and therefore was or was not eligible for free, lifetime tax-free benefits. We assert it is comically easy to not locate work while appearing to do so. We are unaware of any other state which has their workers do this silly “not-find-a-job” dance with a massive financial reward for doing so—we are fairly certain the legislature didn’t intend this outcome.

Similarly, in wage loss claims, there is a similar cottage industry which has sprung up in this state in which claimant lawyers either ask treating doctors to provide the “golden diagnosis” of permanent restrictions or the claimant attorneys themselves will send claimant for an FCE with a friendly vendor to get the permanent restriction. Once the worker is “permanently restricted,” the same silly dance of trying to appear to locate lower paying work starts and drifts on and on. Everyone is then asked to magically “impute” a minimum wage job even though claimant never actually gets one—the whole idea is to maximize the claim outcome. After the settlement is approved, claimant after claimant then returns to the top paying job.

We recently read an article on CareerBuilder which shows how simple it is to appear to be looking for work when not actually obtaining a job. We caution job interviewers in Illinois to understand some of these actions may be intentional.

Here are a few outrageous interview torpedoes that made CareerBuilder’s list:

v  Provided a detailed listing of how their previous employer made them mad.

v  Hugged the hiring manager at the end of the interview.

v  Ate all the candy from the candy bowl while answering questions.

v  Constantly interrupted the interview to bad-mouth their spouse.

v  Wore a hat with large letters that said “Take This Job and Shove It.”

v  Talked about how a nasty extramarital affair cost them a previous job.

v  Threw a beer can in the outside trash can before coming into the reception office.

We also have seen claims where, after the formal interview, the interviewee hit on or asked to date their interviewer, regardless of sex. We also had one claim where the interviewer confirmed claimant had a strong smell of fish—that won’t appear in their interview notes but it usually would block serious consideration for work (other than for fishermen and women). Our final favorite was the claimant who always started every job interview by loudly asking the interviewer if they hired the “disabled,” as he was disabled due to a work-related injury—it appears such a claimant may be intentionally defeating the interview process as redefined by the Americans with Disabilities Act.

Interview mistakes aren’t always so obvious but they are fairly common. CareerBuilder surveyed over 2,400 hiring managers about the most frequent interview “torpedoes.” The most common method to avoid being hired was answering a cell phone or responding to a text. Over 71% of respondents said they’ve been in an interview where an applicant answered a cell phone or responded to a text. Dressing inappropriately and appearing disinterested tied for second place at 69%. Acting arrogant hit the list at 66% along with speaking negatively about a current or previous employer 63% and loudly chewing gum for 59%.

Sort of like the “causation” standard above, we hope Illinois WC system finds a way to avoid the vocational rehab dance of ascertaining what a “bona fide” job search might be when there are lots of jobs out there. Please reply with your thoughts and comments.