8-20-12; Finally, there may be Good News for U.S. business regarding a Medicare Set-Aside issue?!!?? Some relief for employers as they no longer have to set aside for TENS units. KCB&A also adds...

CMS has issued an August 2012 memo to clarify a June 8, 2012 Centers for Medicare & Medicaid Services announcement which confirmed TENS Units would no longer be covered as a Medicare allowable expense for Chronic Low Back Pain (CLBP). The CMS Decision Memo defined CLBP as “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.”

The Decision Memo also stated that a TENS unit is not reasonable and necessary for the treatment of CLBP, in accordance with the provisions of section 1862(a)(1)(A) of the Social Security Act.

The recent change in coverage of TENS units for CLBP will have the following impacts upon the WCMSA proposal review process:

      Effective June 8, 2012, for those workers’ compensation (WC) cases settled prior to June 8, 2012, and where the settlement included pricing for TENS for CLBP, CMS will consider funds spent for TENS for CLBP by beneficiaries and claimants as being an appropriate expenditure of funds as part of the WCMSA.

      For those WC cases that were not settled prior to June 8, 2012, and where the WCMSAs proposal includes funding for TENS for CLBP as part of the WCMSA, CMS will re-review the cases and remove pricing for TENS for CLBP.

Regional Offices shall obtain from submitters requests for a case re-review, along with a signed statement indicating a settlement had not occurred prior to June 8, 2012. Once CMS performs a re-review of WCMSAs to remove pricing for TENs for CLBP, beneficiaries and claimants may not use funds from their WCMSA to pay for non-covered TENS Units for CLBP as this will now be deemed an inappropriate expenditure of WCMSA funds.

Our partner, Shawn R. Biery, J.D. holds the MSCC certification as does Matthew Ignoffo, J.D., MSCC and they rival any other similar credential holder in the U.S. with their knowledge of the murky and difficult process. Shawn can be reached at sbiery@keefe-law.com and Matt can be reached at mignoffo@keefe-law.com. We can provide legal and technical consultation along with rapid pricing of Medicare Set-Aside Trusts for clients, attorneys and other system participants at very reasonable prices.

If you would like a copy of the CMS memo mentioned above or have questions or concerns about such issues, please feel free to contact Shawn or Matt.

8-20-12; City of Chicago’s Workers’ Comp Defense Program now facing Federal Subpoenas

The Chicago Tribune reports the City of Chicago’s $115 Million-Plus-Per-Year WC defense program is going to be the subject of a federal investigation. We assert there is no municipality on the planet that pays $115M per year in WC benefits—if you know of one, please send it along and we will donate $100.00 to your favorite charity. The Feds have asked for six years of records to try to find out why Chicago is paying triple or more of what the rest of the similar-sized cities across the U.S. pay for their annual WC tabs.

The federal grand jury subpoenas demand access to the municipal WC program's database and a host of other records, including injury records, medical assessments and claim investigation records dating to January 2006. They also call on the Finance Committee to turn over records showing the duties of staff members who run the program.

We note six years ago, the U.S. attorney's office subpoenaed similar records, but that probe has not resulted in any charges. The problem we have with all of it is the way the feds do everything in secret and sometimes nothing comes from such investigations. Everyone is giggling to see the Finance Chairman has been able to keep the records from the City of Chicago’s Inspector General by deferring it to his “Legislative Inspector General” who has no WC training or background and is certain to start his investigation in a year or three with a nebulous report to issue right before the next ice age.

We are asking our readers for your thoughts on what the feds should be looking for:

1.    Is it okay for the Finance Chairman to legally accept political contributions from attorneys on both sides of the City’s WC program?

a.    Wouldn’t it be fascinating to see whether there is a strong correlation between Plaintiff/Petitioner firms that split the lion’s share of Plaintiff/Petitioner work coming from City of Chicago with how much those firms legally donate to the political war chest of the Finance Committee Chair?;

b.    Similarly, on the defense side, some of our readers feel it might be interesting to see how much some City of Chicago outside WC defense firms legally donate to the same political war chest, who also happen to win referral of the hundreds, if not thousands of defense referrals each year;

c.    Why doesn’t the City’s outside WC defense work go to open bidding or an RFP process like other governmental bodies routinely do? How are their WC defense firms selected?

2.    Our readers feel someone should ask why does the City of Chicago WC program have no pro se settlements?—is it their goal to have all workers go to a lawyer? Why don’t they ever hold a WC “settlement day?”

3.    On the defense side, our readers and other observers also wonder why the City of Chicago outsources legal defense work limited to emergency petitions only and why such work is sent out to private defense firms but not supervised in any way like all other outsourced defense work for the City of Chicago—by the Corporation Counsel’s office;

4.    Our readers have asked how many City of Chicago workers are having indefensible “non-accident accidents” for claims like

a.    “Repetitive working” where there is no event of trauma;

b.    “Traveling employees” who are laughingly covered for any activity from the minute they leave their homes until they return again—this odd theory covers such workers for injuries occurring when they are off the clock and not being paid by the City at the time of the injury;

c.    “Mental trauma” or California-type mental stress claims arising from non-physical injuries but without sudden shocking events.

5.    We are wondering how many City workers are “odd-lot total and permanent disability claimants” who have the wonderful situation of being paid tax-free workers’ compensation benefits with COLA increases for their entire life by the City of Chicago because the City will not bring them back to work with reasonable accommodations as required by the Federal ADA. No employee is beefing about lack of accommodation under federal law because they are getting Illinois generous tax-free T&P awards! All such claimants could be returned to work today and WC benefits terminated, if the City would have the guts and brains to do so. Please note we have been advised the State of Illinois has about 700 such “odd-lot total and permanent disability claimants” who are costing state taxpayers about $7 million every year. Please further note this is the coolest possible “pension” in a state full of questionable government “pensions” because every City worker is eligible to be an “odd-lot T&P” the first minute they start work, there is no waiting or “vesting” period.

6.    How many City of Chicago workers are off all work and being paid TTD every day of every year? We have been advised there are departments that have 10-30% absentee rates with almost all of the workers off due to “injuries” the City doesn’t investigate, doesn’t manage, let’s go to attorneys with protracted litigation and then settles for high values; all to the detriment of taxpayers.

7.    Is it possible the City of Chicago has one WC adjuster for 3,000 pending claims? Is it possible the City of Chicago has one in-house defense lawyer for the same number of claims?

Inquiring minds want to know. If you have questions or concerns you think the feds should be asking, send a reply or post it on our award-winning blog.

8-20-12; Shots fired! Illinois Appellate Court invokes the Workers’ Compensation Act’s exclusive remedy provision to bar Widow’s Common Law Negligence claim against Employer for workplace shooting

In Rodriguez v. Frankie’s Beef/Pasta and Catering, Decedent had a disagreement and then an altercation with a co-worker over circumstances of the work. The next day, the other worker shot and killed Decedent. The widow of Decedent filed a negligence claim against his employer for negligent hiring and retaining the erstwhile nonviolent but later homicidal coworker. For reasons not clear in the record, it appears the widow or her counsel didn’t file a WC death claim for the passing of Decedent.

The Circuit Court of Cook County granted the employer’s motion for summary judgment reasoning the exclusive remedy provision of the Workers’ Compensation Act, Section 5(a) applied to bar Plaintiff’s negligence claim. Please note this motion was granted despite the fact no workers’ compensation benefits were paid.

Section 5(a) provides

No common law or statutory right to recover damages from the employer…for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act,…or otherwise entitled to recover damages for such injury.

According to our Supreme Court, the IL WC act prohibits employees from bringing a common law cause of action for negligence resulting in injury against an employer unless the employee can show the injury

(1) Was not accidental;

(2) Did not arise from employment;

(3) Was not received in the course of employment; or

(4) Was not compensable under the Act.

It was undisputed Decedent was injured in the course of employment—he was on the job and working when shot. And, as several witnesses testified the altercation leading to the shooting involved the coworker’s demotion, the Circuit and Appellate Courts deemed the otherwise unforeseen criminal attack to arise from employment. Last, Decedent’s injuries were compensable under the IL WC Act as his verbal taunting of the coworker did not make him the initial aggressor.   

Regarding whether the shooting was “accidental,” the Court noted the employer did not direct or expressly authorize the shooting and was unaware of tensions prior to altercation. Thus, according to the IL Appellate Court, Second Division, the employee’s death was "accidental" and Decedent's sole remedy against the employer was under the IL WC Act. Please note the failure of Plaintiff’s counsel to proceed under the IL WC Act to get appropriate death benefits under Section 7 of the IL WC Act did not protect the widow from the motion to dismiss the common law action. Unlike the odd anti-business ruling in Country Insurance and Financial Services v. Roberts, the IL Appellate Court did not rule the IWCC has sole and primary jurisdiction to determine compensability.

Please note the WC death claim would have had a value to the widow of approximately $600,000. When we teach law students, we are careful to point out a diligent Plaintiff/Petitioner’s attorney investigates and proceeds on all potential avenues of relief to avoid malpractice concerns and criticism. This ruling is on the web at: http://www.state.il.us/court/opinions/AppellateCourt/2012/1stDistrict/1113155.pdf

This article was researched and written by Sean C. Brogan, J.D. Please feel free to contact Sean about it at sbrogan@keefe-law.com.