10-4-11; Ooops. We missed something last week

Editor’s comment: You may have read last week’s article about an appellate court ruling in the case of Rose v. The Board of Trustees of the Mount Prospect Police Pension Fund, No. 1-10-2157 (September 15, 2011). When we published the article, the writer and your editor weren’t immediately aware our office represented Officer Rose's employer, the Village of Mt. Prospect, in the companion workers' compensation claim. Having published the article, your editor learned of our handling and we note the companion work comp claim was based upon the same set of facts that gave rise to the line-of-duty disability pension claim.

In the memorable words of Justice Brandeis as quoted by venerable opposing counsel in the WC claim, “sunshine is the best disinfectant.” Full disclosure has to be more than an afterthought. Both the author of the article and your editor intended to state our reasoned legal opinions about a reported decision, even though such views may be potentially controversial. As our firm and/or our client have a direct interest in the outcome of the case, disclosure of that interest to our readers is appropriate.

We assure all of our readers it was only our intention to report the news about an important appellate ruling and not to influence the fairness of the companion proceeding or the hearing officer currently handling it. If you have thoughts or comments, please reply or post them on our blog.

10-4-11; Illinois Workers’ Compensation Commission’s FY10 Annual report is now online. They also will need more time to recover approved settlement contracts

The IWCC has posted their most recent annual report on their website. The report shows the Illinois WC Commission is in a state of change as it implements House Bill 1698/Public Act 97-18.  New board members are in place, new administrators have come on board, and new arbitrator appointments are pending. 

We are going over it for you and will report when the analysis is complete. The best news is:

• Our workers’ compensation insurance industry is healthy and highly competitive. More insurance companies sell WC policies in Illinois than in 48 other states. The residual market is much smaller than average, meaning employers are able to purchase insurance with relative ease.

• WC claim filings have dropped from the peak of roughly 72,000 cases in FY95 to a mere 51,000 cases in FY10.

• Illinois' 2008 total injury rate was 60% lower than in 1990. We credit re-engineering of the work place and lots and lots of safety protocols where engineering was unavailable.

To view their annual report, go to http://www.iwcc.il.gov/annualreport10.pdf

In other news, the IWCC has advised all participants we need to allow more time when ordering copies of approved settlement contracts. Starting November 1, 2011, to improve security, the Commission will seal boxes of entered settlement contracts. Once a contract is entered into their computer system, the document will be sealed in a box and will be unavailable for the next 4-6 weeks.  Once the boxes have been logged in the Springfield archives, they should be able to retrieve them in 7-10 days. 

They are cautioning everyone to allow adequate time when requesting contracts.

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.