10-4-11; What if they submitted an MSA and CMS didn’t approve or reject?

In one of the odder rulings we have read in some time, in Billy Smith, Plaintiff vs Marine Terminals of Arkansas, Defendant and American Home Assurance Company, Intervenor (Case No. 3:09-CV-00027-JLH, issued August 9, 2011), Claimant Smith was involved in an accident on April 14, 2006, working as a truck driver aboard a floating barge owned and operated by his employer. He injured his right hand when his co-worker closed a crane bucket on it. Plaintiff filed claims under the Longshore and Harbor Workers’ Compensation Act (LHWCA) and the Jones Act.

Plaintiff had five surgeries to his right hand and was also treated for post-traumatic stress. The parties reached a settlement agreement in which Plaintiff was to accept $1,000,000.00 in exchange for a discharge of all claims against Defendants in the Jones Act liability case and all claims under the LHWCA against the employer. American Home Insurance, the workers compensation carrier, also agreed to waive its entire WC lien of $265,423.47 for past benefits.

This case came before the United States District Court for the Eastern District of Arkansas on Plaintiff’s self-styled “Motion to Determine the Medicare Set Aside Amount” in the case. At the time of the Motion, Plaintiff was receiving SSDI benefits and was Medicare eligible. As a part of the settlement, Plaintiff agreed to determine a Medicare Set-Aside (“MSA”) and seek submission of the MSA with the Center for Medicare and Medicaid Services (“CMS”) for approval. The overall settlement was conditioned upon obtaining U.S. Department of Labor DOL approval by the District Director of the settlement of the underlying LHWCA following approval of the MSA, pursuant to Section 908(j) of the LHWCA.

An MSA allocation was prepared by a vendor in the amount of $14,647.00. The MSA was submitted to CMS for review and approval March 17, 2011. CMS decided not to review the MSA submission, claiming they were overwhelmed with work. The inability of CMS to review and timely approve the MSA potentially jeopardized the reasonable settlement in this claim.

The Federal Court found the vendor-determined MSA of $14,647.00 and the supporting rationale were a reasonable estimate and determination of the Plaintiff’s future injury-related, Medicare-covered treatment. The Court also noted there was no evidence Plaintiff or any party was attempting to shift the payment of such future expenses for the treatment to the federal government or Medicare. CMS’ failure to consider and review the MSA was also noted in the holding. Unless and until this matter is further appealed, it may be possible to get MSA’s approved either by CMS or a Federal District Court who is fully advised in the premises.

Our law partner, Shawn R. Biery, J.D. holds the M.S.S.C. certification and is one of the top MSA experts in the U.S. If you have questions or concerns about such issues, please feel free to contact Shawn at sbiery@keefe-law.com.

10-4-11; The New Troika of Concepts coming at IL WC claims handlers, risk managers and their attorneys

One of these concepts is coming right out of the blue. The other two are in the new 2011 Amendments. To us, it is mildly bewildering but if you want to stay ahead of the game in these difficult times, read on.

First, we are now advised ITLA and its members in the WC community are trying to strip out the ability of the defense industry to hire our own voc experts. We have been advised it is becoming the position of the Petitioner’s bar that claimants in this state have developed an unfettered “right” to choose the only vocational counselor on all claims. The right includes having to pay TTD/maintenance while their sole choice of voc counselor maximizes their claim at the employer’s cost. In our view, the “right” to be provided to the claimant bar in this state includes an irreversible and final reliance upon their opinions about employability/return to work by Arbitrators and Commissioners alike—if we aren’t allowed our own experts, Illinois employers may be forever blocked from litigating the issue. Effectively, it appears ITLA is trying to immediately and indefinitely end the ability of Illinois employers to defend themselves on the biggest of WC claims, as it is their position employers can no longer hire and provide vocational counseling at their sole cost.

We are starting to wonder if they also want to

      Force Illinois employers to hire the nurse case manager of claimant’s choice at the employer’s expense;

      Have employers hire the IME doctors of claimant’s choice at the employer’s expense;

      Make all experts the sole “right” of claimant to select at the employer’s expense;

      End all litigation, defense experts and legal or factual defenses.

In our office right now, we have several opinions from vocational experts hired by claimants’ attorneys summarily finding claimants to be totally and permanently disabled. To be even clearer, in creating those reports the counselors provided no vocational counseling of any kind—they just looked at the medical charts, met with claimants and said the workers can never be employable again. We completely disagree and have our voc experts working to get these folks back into the workforce at the highest wage possible. In our view, this new ruling, if it stands will mean we will never be able to again disagree about a vocational issue or hire a defense expert to provide ongoing counseling.

We ask the rhetorical question of the claimant bar, why wouldn’t every claimant attorney recommend to every single client you have to use such voc counselors on every single broken finger, sunburn or elbow strain? Wouldn’t Illinois employers then have to pay lifetime WC benefits on every single claim? If the answer to the inquiry is no, we would love someone to advise how would we controvert any claim or effectively litigate it. To us, it appears this unprecedented concept means we have no “right” to defend our clients.

At present, the lead and “test” ruling on this concept is pending in the Circuit Court of Cook County. If you want a copy, send a reply. We are petrified to see it move to the Appellate Court for fear ITLA will get a legal ruling that will toss this system completely up for grabs. Most observers were hoping we weren’t going to have to go back to the legislature about another change that is certain to directly impact the highest of Illinois WC claims. We are simply going to have to take a wait-and-see approach on this 800-pound gorilla.

Second, we are now advised the only “valid” way to dispute medical necessity in this state will be with a UR analysis by a URAC-compliant vendor. In effect, this may end the ability of IME doctors to validly opine about issues relating to medical necessity of care. We also note this appears to us to contradict Section 8.7 of the IL WC Act which says, in part: “Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review … (emphasis added).” Later in the same Section, the Act further states: “An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12.”

The focus of the veteran lawyer who advised us of this issue focused on Section 8.7(i)(3) of the IL WC Act which says: ”An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section.”

Finally, Section 8.7(j) creates a rebuttable presumption denial of care using UR is correct and shields the employer from penalties when it says: “When an employer denies payment of or refuses to  authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act.”

We feel there is some conflict in the language of the newly amended IL WC Act and hope reasonable Commission rulings can lead the innocent participants on both sides out of this legislative morass. We caution our readers, if you want to attack overtreatment and overbilling, it appears you may want to send all records and bills to a UR provider. If you want our recommendations for such vendors, send a reply.

Third, as fast as you can remember to attack medical necessity with utilization review or UR, you also aren’t supposed to be able to use UR for causal connection!!! Section 8.7 limits UR when it says: “Only a health care professional may make determinations regarding the medical necessity of health care services during the course of utilization review.” There is no provision allowing a UR provider to comment about causal connection and we are told the best path to do so is with a qualified IME provider. Again, if you want IME recommendations across Illinois, send a reply.

In sum, we are advised you are going to need an IME to dispute issues relating to causal connection based on the limitations in this new section. Yes, we agree it is all blurring. Yes, we feel getting into a WC PPO is a much better alternative.

9-27-2011; Staircase fall-down dismissed on motion

In a major win for the Illinois “fall-down” defense industry, in Claimsone v Professional Property Management, et al. 2011 IL App (2d) 101115, No. 2-10-1115, (September 12, 2011), Plaintiff Lynn Brome slipped and fell on a rear apartment staircase covered with snow and ice from the previous night’s snowfall while working as a housekeeper for employer, Tri-County Opportunities.

She eventually filed a workers’ compensation claim. Claimsone, her employer’s comp carrier, later filed a subro action against the property’s apartment management company, the apartment complex as well and the apartment resident who had hired Brome, alleging they breached their duty of reasonable care by failing to remove the snow and ice from the staircase, as the defendants

·         In the past had voluntarily cleared the staircase from ice and snow and;

·         The agreement between management company and the complex’s caretaker provided for snow removal.

The Second Appellate District, addressing the issue of whether defendant’s breached their duty of care upon their voluntary assumption of a duty to maintain the premises free and clear of snow at the time, held even though Defendant’s had not done so early in the morning of the accident, Brome had twice observed the condition, which was obvious to a reasonable person, and she could thus not justifiably rely on defendant’s prior pattern of shoveling.

As for the agreement between the apartment’s management company and caretaker, the Court held Defendants owed no duty to clear snow and ice and had no contractual agreement under its terms, which specified only “walks” and “sidewalks” but not staircases, and the courts require express language to impose such a duty.

This article was researched and written by one of our fall-down defense experts, Patrick Cremin who can be reached at pcremin@keefe-law.com.