Thursday, June 15, 2017

CRB Excuses Claimant's Failure to Attend Formal hearing

In the recent CRB case of Greene vs. Ansonia Copper and Brass the Claimant, who was represented by counsel, failed to attend a scheduled formal hearing to prosecute her claim for 31-308a post PPD discretionary payments. Unfortunately, the Claimant forgot about the hearing and at the appointed hour was in Virginia attending a family member's graduation . The Trial Commissioner dismissed her claim for benefits for failure to prosecute however the CRB reversed, essentially relying on the humanitarian purposes of the Connecticut Worker's Compensation Act as well as the notion that jurisdiction in a worker's comp case is continuous. Interestingly, the session which the claimant missed was in fact a session that had previously been continued 3 times at her own request.

Court: Temps May Not be “Employees” Under Workers Compensation Law, Allowing Lawsuit

Article by Attorney Gary S. Starr, Esquire of Shipman and Goodwin, LLP of Hartford. Used with permission.
Employers who use a staffing company to supplement their employees may find themselves in for a rude awakening if the temp gets hurt at their worksite. Ordinarily, an employee injured on the job would be covered by the workers compensation insurance. A recent Superior Court decision rejected the idea that the temp is covered by the employer’s workers compensation insurance and is allowing a lawsuit to go forward against the employer. The court found that the temp was an employee of the staffing company and not the employer, even though the temp accepted the assignment with the employer, the work was being done for the employer, and the temp was under the control of the employer at the worksite, and not the staffing company. While there are several state court decisions that have found this arrangement to be a dual employment situation, other courts have rejected the concept of dual employment. Under dual employment, the temp would have been covered under the employer’s workers compensation insurance. Until an appellate court or the Connecticut Supreme Court rules on this issue or the legislature clarifies the statutory scheme, employers using staffing companies to fill out their employment needs, run the risk that if the temp gets hurt, they could be sued. Such a lawsuit would present a risk of liability that could exceed the workers compensation formulas, with possible punitive damages. Employers should be careful in their negotiations with staffing companies to try to establish a dual employment relationship with the temp, even having the temp sign a written agreement with the employer accepting the assignment with the employer. There should also be clarification of the scope of any indemnity. The employer should check with its workers compensation insurance carrier to ensure coverage of any temps. While these steps may not avoid the consequences described above, it may provide a basis for arguing for dual employment and for coverage under workers compensation. Of course, dual employment has its own set of challenges as well so employers using temps need to understand both the pros and cons in such a relationship.

Wednesday, June 14, 2017

Social Security Disability and the "Date Last Insured"

Today's case was a reminder of the importance of making a timely filing for Social Security Disability should you become disabled from work on a long term basis. In order to be eligible to receive Title II SSD benefits, one must file their claim for disability within a certain period, typically 5 years, from the last date of full-time work. Today's client came to me in late 2016. She had applied for disability in December of 2015 claiming an "alleged onset date" in 2003. Her "Date last Insured" (DLI) was in December 2004. In such a case it is imperative that one have medical records supporting the existence of a disability prior to the DLI. While our client had voluminous recent records records substantiating severe medical problems that would ordinarily make her eligible for disability at an early stage of the process, she had very few records that pre-dated her DLI. Thus, it becomes a challenge for the lawyer to successfully argue such a case. This is especially true given that medical providers only need to retain their patient's records for 7 years. The moral of the story is to apply for Disability as soon as it becomes apparent to you that your condition may prevent you from working for 12 months or more. You do not do yourself, or your lawyer, a favor to wait years and years before deciding that maybe SSD is something you should look into. If you you have any questions concerning onset dates, DLI problems, or any other aspect of Social Security Disability law, feel free to contact us at any time. The initial consultation is always free.

Countdown to October – Are You Ready for LMSAs and NFMSAs?

From MedVal.com CMS, Liability, Medicare Set-Aside Blog, Medicare Set-Asides, MSP News on June 5, 2017 | Posted by Jennifer Alvarez, JD, RN, MSCC, CMSP We are currently four months away from CMS implementing their new workflows for Medicare Administrative Contractors (MACs), which outline how they will handle bills when there is a Liability Insurance Medicare Set-Aside Arrangement (LMSA) or No-Fault Insurance Medicare Set-Aside Arrangement (NFMSA) involved in the settlement. You may be aware that, in February 2017, CMS took another step to clarify that, pursuant to the Medicare Secondary Payer Act (MSP) [1], Medicare’s interests need to be considered in liability insurance [2] and no-fault insurance [3] claims, wherein Medicare is a secondary payer. Interestingly, the news came from CMS in the form of a one-time announcement in a February 3, 2017 MLN Matters Article (Article) [4], which was noted to be intended for physicians, providers and suppliers that submitted claims to MACs; specifically, the Article advised the physicians/providers/suppliers and their billing departments that, effective October 1, 2017, the MACs will not pay for services or items that should be paid from an LMSA or NFMSA. Minimal direction, with respect to claim payments as related to LMSAs and NFMSAs, can be found in CMS’ publication, Change Request 9893 (CR 9893) [5]. CR 9893 and the February 2017 CMS Article indicated that CMS will establish two new set-aside processes for LMSAs and NFMSAs; moreover, the system will be able to detect an LMSA or NFMSA record based on diagnosis codes, similarly to the way a Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) record is detected. CR 9893 instructs MACs on when to deny payment for items or services that should be paid from an LMSA or NFMSA fund; specifically, when denying a claim based upon the existence of an open LMSA or NFMSA MSP record, the MAC should include the following remark codes as appropriate to the situation: N723—Patient must use Liability Set-Aside funds to pay for the medical service or item. N724—Patient must use No-Fault Set-Aside funds to pay for the medical service or item. MSN 29.33 – Your claim has been denied by Medicare because you may have funds set aside from your settlement to pay for your future medical expenses and prescription drug treatment related to your injury(ies). Where appropriate, MACs may also override and make payment for claim lines or claims on which: Auto/no-fault insurance set-asides diagnosis codes do not apply, or Liability insurance set-asides diagnosis codes do not apply, or are not related, or When the LMSA and NFMSA benefits are exhausted/terminated, and an accurate accounting has been completed. How Does CMS’ One-Time Announcement Impact You? At first view, the February 2017 CMS announcement appears to affect only the medical community; however, it should also absolutely serve as notice and a warning to those attorneys, claims professionals, and stakeholders, who have not been considering Medicare’s interests in liability and no-fault (including auto) claims for which Medicare is a secondary payer. CMS has clearly indicated that it is in the midst of establishing two new set-aside processes – for LMSAs and NFMSAs – with “the policies, procedures, and system updates required to create and utilize an LMSA and an NFMSA MSP record, similar to a WCMSA MSP record.” Again, this language is a notice to stakeholders that Medicare’s interests should be protected in liability and no-fault claims, where Medicare is a secondary payer. It’s Time to Be Prepared If you already have a plan in place and are currently considering Medicare’s interests in liability and no-fault (including auto) claims, we simply suggest you take a fresh look at your internal policies to ensure the proper protocols are in place to adequately protect Medicare’s interests and attain MSP compliance. If you do not have a plan in effect, it is time to make one. While we expect CMS guidelines (and, perhaps a formal CMS review program for those who opt to participate in the same), no such formal guidance is yet available; nevertheless, in an effort to achieve MSP compliance, we recommend you create a plan of action and establish internal policies to consider Medicare’s interests. As you develop your plan, we suggest consideration of the following: Establish proper internal protocols and best practices to identify the liability and no-fault claims for which Medicare’s interests should be considered; As you move toward settlement, complete a thorough medical-legal analysis for each claim; If an LMSA/NFMSA is determined to be appropriate, be aware that several factors may impact the actual funding of the LMSA/NFMSA, such as: insurance policy limits, statutory tort caps, case law, and negligence rules; and Have a plan to handle the potential for insufficient funds. The settlement of a liability claim for less than full value can pose a problem – and red flag – for CMS as, (1) CMS is entitled to full reimbursement of all medical expense payments made under the claim by Medicare (i.e. conditional payments); additionally, (2) regarding anticipated future medical expenses, CMS (as the secondary payer) has historically taken the position that it is the primary payer’s responsibility to set aside funds that will cover future Medicare-covered medical expenses related to the injury over the individual’s life expectancy. Unfortunately, CMS’ expectation of full recovery is inconsistent with liability cases that typically settle for less than the full value of the claim. Ultimately, the problem is that there may not be enough money to fully cover conditional payments, damages, future medicals, and other related costs; furthermore, CMS may not recognize apportionment of said costs, or the manner in which settlement funds are allocated per agreement by the parties. With insufficient settlement funds to cover conditional payments and/or fully fund the LMSA, the parties are unable to comply with MSP policies in accordance with CMS practices. The consequences could be profound as cases may not be able to settle or will require court intervention, thereby resulting in an inundated court system weighed down with an onslaught of expensive and time-consuming cases. Ensuring that Medicare’s interests have been considered in both liability and no-fault claims is mandatory. Failure to do so can impact all parties involved so that the Medicare beneficiary may be prohibited from obtaining medical care, and the attorneys could be subject to malpractice claims. Conclusions From CMS’ recent publications, it is clear: CMS is in the process of developing two new set-aside processes for LMSAs and NFMSAs. It is not yet clear, however, how these processes will be implemented; notwithstanding the same, awareness of the factors that could impact LMSAs and NFMSAs, and the resolution of liability and no-fault claims should be considered prior to October 1, 2017. The preparation of a reasonable and defensible LMSA or NFMSA should be supported with efforts to attain MSP compliance, and such actions should be documented and memorialized in every settlement. As an MSA provider, we are committed to helping you put the proper protections in place to achieve MSP compliance. If we can be of service to you regarding your Liability, No-Fault, or Workers’ Compensation claims, please contact us at info@medval.com. [1] 42 U.S.C. § 1395y(b)(2)(A)(ii) specifically mentions liability claims, but for years, a formal interpretation of the MSP Act as related to liability settlements did not exist. [2] Liability insurance is insurance (including a self-insured plan) that provides payment based on legal liability for injury or illness or damage to property. It includes, but is not limited to, automobile liability insurance, uninsured motorist insurance, underinsured motorist insurance, homeowners’ liability insurance, malpractice insurance, product liability insurance, and general casualty insurance. 42 C.F.R. § 411.50(b). [3] No-fault insurance is insurance that pays for medical expenses for injuries sustained on the property or premises of the insured or in the use, occupancy, or operation of an automobile, regardless of who may have been responsible for causing the accident. This insurance includes but is not limited to automobile, homeowners, and commercial plans. It is sometimes called “medical payments coverage”, “personal injury protection”, or “medical expense coverage”. 42 C.F.R. § 411.50(b). [4] https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/MM9893.pdf [5] https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2017Downloads/R1787OTN.pdf Share this post Monthly Archives Monthly Archives

Wednesday, December 30, 2015

Why is it Important for my Connecticut Lawyer to be a Worker's Compensation Specialist?

There are several factors that are important when selecting an attorney. First, you want someone who is knowledgeable and experienced in handling injury cases (versus an attorney who is a "jack of all trades, and master of none"). Just as you would not go to your family doctor for back surgery; you should not trust any attorney with your Hartford, Connecticut area Workers’ Compensation claim. James Aspell concentrates on Connecticut workers' compensation. We have handled and successfully resolved hundreds of personal injury and workers' compensation through trial, arbitration and mediation. The Workers’ Compensation Section of the Connecticut Bar Association has created the Workers’ Compensation Certification Program to help the public to identify attorneys who are competent, experienced, and skilled in the area of workers’ compensation law and to raise the level of practice in this area of the law. Jim Aspell is a Board Certified Workers’ Compensation Specialist. He has been so designated since the project's inception in 2005 and he was one of the first lawyers in the State named to this honor. This is an honor reserved for attorneys who demonstrate the highest knowledge of and commitment to the practice of Workers’ Compensation Law. Currently, in Connecticut, there are less than 60 attorneys who have achieved this designation. The Legal Specialization Screening Committee and the Rules Committee of the Superior Court have approved the CBA’s certification program. This approval process insures that our program has met the court’s strict standards. See the links below for more information. Attorneys who have attained the designation "Board Certified Workers’ Compensation Specialist" have satisfied the following requirements: demonstrated that no less than twenty-five percent of their total practice has been in the area of workers’ compensation law; engaged in the practice of law in Connecticut for at least five years and been a member in good standing of each bar in which the attorney is admitted; maintained a malpractice policy with minimum limits of $300,000 per occurrence; have a satisfactory disciplinary and malpractice history; participated in a minimum of thirty-six hours of continuing legal education activities in the area of workers’ compensation law in the three years prior to filing the application; have a minimum of five references from other attorneys knowledgeable regarding the applicant’s practice and competence; and have passed a rigorous one-day written examination. Only attorneys who have been formally certified may use the designation "Board Certified Workers’ Compensation Specialist" on business cards, letterhead, and other printed advertisements. See, www.ctbar.org/general/custom.asp?page Certification You should feel comfortable with your attorney’s abilities as well as the attention paid to you and your case. At The Law Offices of James F. Aspell, P.C. you can be confident that we have the experience and also know that you can call the attorney at any time if you have a question or problem. We promise to work hard to get you the maximum benefits the law allows so that you can get back to the life you enjoy.

Tuesday, December 22, 2015

Mileage Reimbursement Rate to Drop.

The IRS has issued the 2016 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes. Beginning on Jan. 1, 2016, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) are: 54 cents per mile for business miles driven (down from 57.5 cents in 2015) 19 cents per mile driven for medical or moving purposes (down from 23 cents in 2015) 14 cents per mile driven in service of charitable organizations (unchanged from last year) The drop in rates for 2016 reflects lower gas prices. Workers’ Compensation Travel Reimbursement Rates Connecticut workers’ compensation law requires employers to furnish or pay for transportation for an injured employee traveling to and from medical care. If the claimant uses a private vehicle, he or she must be reimbursed for mileage at the federal mileage reimbursement rate set by the General Services Administration. The GSA and IRS rates are often very close or the same, so it is likely that the workers’ compensation travel reimbursement rate will drop in 2016. The GSA typically publishes its new rates in the Federal Register the last week of December; those rates are effective Jan. 1.

Monday, December 21, 2015

The Rationale Behind Worker's Compensation Systems

Connecticut Workers compensation is a no-fault system. The worker doesn’t have to prove the employer was negligent to make a workers compensation claim, and a worker can make a claim even if he or she was negligent in some way and that negligence contributed to the injury. As long as the person suffered a type of work-related injury covered by the Workers Compensation Act, he or she can make a claim. Generally speaking, covered injuries are those that: Arise from the employment — Injuries must have a direct causal relationship with some danger or risk of the employment and must be job-related In the course of employment — Injuries have to happen while the employee is working, at a location the employee is at because of his or her employment, and under circumstances required by the employment When a claim is approved, available benefits can take a number of forms in Connecticut. Workers compensation can cover: Medical care related to the injury Temporary total or partial disability benefits when the injury leaves you unable to work or working light duty for some time period Permanent total or partial disability benefits if you are either permanently unable to work or have some permanent disability or disfigurement but can work Vocational rehabilitation benefits Death benefits for family members of workers who are killed in Connecticut work-related accidents Why Workers Compensation? The rise of industry is the foundation of much of the world we know today. In the late 19th and early 20th centuries as mechanization and mass production become increasingly more commonplace, jobs shifted from agriculture to factories, bringing people to cities for work. Places such as Hartford County boomed and expanded. But those early factories could be dangerous places for workers — and when a worker was disabled in those days, there was no safety net when that person could no longer do his or her job. Workers who were injured, maimed, or disabled in workplace accidents had to sue their employers and prove negligence to recover any kind of compensation for their injuries. Proving those cases was challenging, and an employer could counter that the injured worker was negligent or assumed the risk of doing the job, or that another employee was negligent. If the employer won, the disabled worker was left with nothing and no way to earn wages. If the worker won, there were no limits to the employer’s liability and one bad injury could put an employer out of business — perhaps costing hundreds of jobs. It was a system that was risky for both employer and employee. The workers compensation system came into being as a way to try to balance the needs of injured workers with those of employers. Laws governing workers compensation grew out of social and industrial reform movements in the late 19th and early 20th centuries. The idea was that workers who suffer disabling injuries in the workplace shouldn’t be financially ruined when an accident on the job renders them unable to work, but that employers also shouldn’t be driven out of business by a lawsuit verdict. The Role of an Attorney Even though workers compensation claims don’t typically involve lawsuits or courts, there is nonetheless a specific legal process involved in making a claim. There may be an opportunity to settle a claim with your employer, and an experienced workers compensation attorney can help ensure you get the best possible settlement. If you try to go it alone, you may end up with less than you deserve. If you need to attend a hearing on your claim, having a Board Certified Connecticut Worker's Compensation Specialist may gives you a better chance at the compensation you need and deserve. Sometimes your work-related injury will involve a third party who is not your employer, and you may have the option to pursue a claim against that third party in a civil court. An attorney experienced with Connecticut personal injury and workers compensation claims can discuss with you whether you might have a claim against someone other than your employer. Workers Compensation Workers Compensation Information Workers Compensation Overview How Do Workers Compensation Claims Work? Documenting & Proving a Workers Comp Claim Keeping Your Job Third-Party Lawsuits Third-Party Wrongful Death Claims Workers Compensation FAQs Types of Workers Comp Injuries Types of Workers Comp Benefits Earning your trust Finding an attorney can be overwhelming. You can trust the Hartford Connecticut Worker's Compensation injury team at The Law Offices of James F. Aspell, P.C.to handle your case with the compassion and respect you deserve.