Tuesday, February 17, 2015

Mental Distress: We Continue to follow this important issue in Connecticut Worker's Compensation

FROM CTNEWSJUNKIE.COM Two bills under consideration this legislative session seek to expand the state’s workers’ compensation law to cover those who suffer severe mental or emotional distress after witnessing extreme workplace violence. One bill, SB 593, has been introduced by the Labor and Public Employees Committee. It would expand coverage under the Workers’ Compensation Act to those who have certain “mental or emotional impairments” due to witnessing the death or maiming of another person in the workplace. Similar legislation has failed in previous years. In the past, workers’ compensation claims could be filed by those who suffered emotional or mental distress even if they sustained no accompanying physical injury. But in 1993, amid cost concerns, the law was changed so that those with emotional or mental trauma could not file a claim unless they also were physically injured. Lawmakers on the Labor and Public Employees Committee introduced the bill this year because they have “learned over the years” that experiencing something traumatic can have a lasting effect on workers, said committee co-Chairman Sen. Gary Winfield, D-New Haven. The current law “does not reflect the reality” that many workers experience, according to Senate President Martin Looney, D-New Haven. “It is very possible to have severe, traumatic mental health issues that are not necessarily accompanied by a physical injury.” The law as it stands now “just seems to be unfair, just doesn’t seem to recognize the reality of the significant disabilities that can occur,” he said. Looney was among those who testified in support of the bill at a Jan. 29 public hearing. Andrew Matthews, president of the Connecticut State Police Union, also spoke in support of the bill, noting the trauma many police officers face on the job. Ted Scholl Jr., legislative representative for the Connecticut State Firefighters Association, testified in favor of the bill as well. Others opposed the measure. David Lowell, president of the Association of Ambulance Providers, said the group has “significant concerns” about the burden the bill would put on the ambulance industry. “Ambulance providers pay some of the highest workers’ compensation rates due to the nature of the employment,” Lowell testified. “This bill would cause an increasing hardship on all providers at a time when Medicaid and Medicare rates have been cut.” The bill stipulates that workers’ compensation coverage would apply to any worker who a licensed psychologist or psychiatrist diagnoses as suffering from extreme distress. The distress must be caused by witnessing the death or maiming of one or more people or witnessing the immediate aftermath, in some capacity connected to the worker’s employment. The Connecticut Conference of Municipalities opposes the bill, according to Bob Labanara, the group’s state relations manager. Cities and towns know how important it is to help municipal employees who suffer emotional distress from their jobs, and there already are measures in place to do so, he said. The bill, however, is too ambiguous. Words like “aftermath,” “impairment” and “maiming” have not been clearly defined, Labanara said, which would make it impractical to enforce. City and town leaders also worry about additional costs they would incur at a time when municipal budgets are already tight, he said. Several groups that submitted testimony at the public hearing — including the Connecticut Psychiatric Society, the Connecticut Education Association and the Connecticut AFL-CIO — support the measure but said workers’ compensation coverage should be expanded even further. Workers can be traumatized if they witness a violent act, even if no one is killed or maimed as a result, the Connecticut Psychiatric Society said in its testimony. The AFL-CIO also said in testimony the bill is a good step but “falls short.” Winfield acknowledged that lawmakers will have to wrestle with how best to implement any law expanding workers’ compensation coverage, but said it is an important undertaking. Looney also has introduced a related bill, S.B. 105. His bill focuses on a specific section of the Workers’ Compensation Act and seeks to expand the legal definition of “personal injury” so that it would include certain events in which a person suffers mentally or emotionally after seeing someone killed or maimed by another person on the job. Looney said he is optimistic about the potential to expand workers’ compensation coverage this session. “There is growing interest and support for it,” he said. Both bills to expand coverage are being spearheaded by Democratic lawmakers, who hold a majority in both the House and Senate.

Updates to Connecticut Worker's Comp Medical Fee Schedule

WCC Official Hospital and Ambulatory Surgical Center Fee Schedule Memorandum - December 31, 2014 MEMORANDUM NO. 2014-06 TO: WCC Commissioners, Facility Fee Schedule Core Committee Members, District Administrators, Advisory Board, Legal Advisory Panel, Medical Advisory Panel, Medical Practitioners, Self-Insureds, Insurance Carriers, Medical Care Plans, Attorneys, and Unions. FROM: John A. Mastropietro, Chairman DATE: December 31, 2014 RE: Issuance of the Official Fee Schedule for Hospitals and Ambulatory Surgical Centers Pursuant to Public Act No. 14-167 (Senate Bill No. 61) Effective for Medical Treatment Rendered On and After April 1, 2015 Pursuant to Public Act 14-167 "AN ACT CONCERNING WORKERS' COMPENSATION AND LIABILITY FOR HOSPITAL AND AMBULATORY SURGICAL CENTER SERVICES", the Workers' Compensation Commission hereby establishes the following Facility Fee Schedule for the treatment of injured workers. RATES: 1. The hospital inpatient rate shall be 174% of the Medicare rate payable to that facility on the date of service. 2. The hospital outpatient and hospital-based ambulatory surgery rate shall be 210% of the Medicare rate payable to that facility on the date of service. 3. The non-hospital based ambulatory surgery rate shall be 195% of the hospital-based outpatient Medicare rate payable in the same CBSA (Core Based Statistical Area) on the date of service. 4. Where there is no Medicare rate for the procedure in an outpatient hospital setting, the parties shall negotiate the reimbursement rate. If negotiation is not successful, the parties may request a hearing with the Commission; however, treatment shall proceed pending same. RULES: In order to implement the above-referenced Fee Schedule the following rules shall apply: 1. Payors must remit payment within 60 days of receipt of appropriate documentation for compensable claims. Payment made after the 60th day must include interest payment at the rate of 1.5% per month. 2. Facilities have 60 days following receipt of payment to request a review by payor and such requests may be accompanied by additional supporting documentation. Any requests to review made after such 60 day period will not be considered unless parties agree otherwise. 3. Payment for implants, devices and hardware is included as part of the appropriate percentage above Medicare for the procedure (the applicable inpatient, outpatient or ambulatory surgery rate established by this Fee Schedule). Requests for additional reimbursement for implants, devices and hardware shall be by exception only. The exception is if the applicable percentage of Medicare amount for the implant, device and hardware does not cover the invoice cost, then the invoice cost can be presented and will be reimbursed at 130% of invoice less the applicable percentage of the Medicare amount for the implant, device and hardware already included in the fee. 4. The reimbursement rate for services rendered will be in accordance with this Fee Schedule unless a different rate is negotiated between the parties. 5. This Fee Schedule will apply to dates of service rendered on and after April 1, 2015. The Workers' Compensation Commission is working with a vendor to publish the applicable rates, rules and guidelines for implementation of this Fee Schedule. It is expected to be available in advance of the April 1, 2015 effective date. Notice of availability will be published on our website at http://wcc.state.ct.us.

Uber, Lyft and Worker's Compensation

By Robert Wilson at workerscompensation.com.
Two separate lawsuits seeking to define drivers as employees rather than independent contractors could end up forcing ride sharing services like Uber and Lyft to start providing workers’ compensation and other employment benefits to their drivers around the country. In separate lawsuits filed (by the same attorneys) in U.S. District Court in San Francisco, attorneys are seeking class action status to represent Uber and Lyft drivers nationwide, but are using California's labor law, since both Uber and Lyft reference that state's laws in their driver contracts. Both cases have already earned class action status, but only for representing California drivers. Attorneys involved vow an appeal on that decision. If either suit is successful it could be very expensive for the companies targeted. It is hard to tell if the drivers will actually see a benefit. The way class action suits go they could end up reclassified as employees with a host of new benefits, or the attorneys might take millions while every driver gets a free air freshener; we just won’t know until it has played out. One plaintiff attorney, who is involved in both cases currently before the court, accuses Uber and Lyft of shifting costs to drivers by classifying them as contractors. Some of those costs are auto insurance and fuel. If those drivers were employees, Uber and Lyft would have to pay those, and also provide workers comp and other benefits as mandated by law. From my experience with Uber, the drivers seem to meet the criteria of true independent contractors. They are their own business. They use their own cars, and work when they want to. No central dispatcher directs them to any pick up, and they appear to work for no one except themselves. They do use a central software system that puts them in direct contact with potential customers, but in the end they have complete discretion to accept or decline an available ride request. Uber and Lyft get a percentage of the ride fair for facilitating the transaction. The math makes a loss in court look downright disastrous for Uber. It would instantly shift them overnight from a software company coordinating independent commerce to one of the nations’ largest employers. According to Uber, more than 162,000 drivers completed four or more trips using their service in December. That is 162,000 people who will suddenly have their fuel costs and insurance paid for (both Uber and Lyft currently offer umbrella liability insurance for their drivers), and will need to be offered workers’ comp. That comp won’t be cheap. These guys aren’t exactly desk jockeys. I’m not even getting into payroll taxes, unemployment or the like. Obviously, a win by the lawyers here will dramatically reshape, and likely end, the budding ride share revolution. People on the payroll will need to drive far more than 4 trips in a month, so immediate consolidation will probably insure a vast swath of that 162,000 will find they no longer drive for Uber. That will result in less availability and slower ride response. In fact, the entire ride share phenomena; one based in pure capitalism that brought road warriors clean cars, friendly drivers and prompt service, will be on the edge of extinction. Those cars will be on the same monopolistic path that brought us every rattling, vomit encrusted cab in America. Oh joy. In the interest of full disclosure, I have a severe bias against class action suits, which I largely view as nothing more than a wealth redistribution vehicle designed for the enrichment of attorneys. Over the years I have become party to a few of these, not by anything of my doing other than playing the part of consumer somewhere in America. One such suit, against my beloved Southwest Airlines, apparently determined that Southwest had violated my rights by an improper roll out of expiration dates on free drink coupons. The result was that, if I would declare that I had flown on a Business Select ticket prior to a certain date, the settlement entitled me to (wait for it) ONE free drink coupon (I didn’t bother and I didn’t care). The attorneys that brought the suit were seeking $7,000,000 for their efforts. In another suit, related to the purchase system set up over the then new domain extension ”.biz”, attorneys took $2.75 million of the $3 million made available for a settlement in what was determined to be an illegal lottery. My company, which originally spent about $300 for the “chance” to buy WorkersCompensation.biz (we won), didn’t bother filling out the paperwork for our piece of the action, mostly because our time was more valuable than the $3 or so we would have been paid. So, I do believe that if attorneys are successful in having Uber and Lyft drivers declared as employees, with all the associated rights and entitlements associated therein, they will have been successful in killing off one of the most revolutionary and entrepreneurial creations we have seen in the world of ground transportation since, well, the invention of ground transportation. It does appear to me that workers’ comp will indeed kill Uber, or at the very least, the independent spirit with which it sprang to life. As always, if you have any questions about your Connecticut Work Injury, feel free to call me.

Friday, February 13, 2015

Failure to consider Medicare's Interests can prove costly in settling claims

Federal Circuit Court Finds Employment Discrimination Settlement Lacking Medicare Details Binding, Leaving Parties Unprotected from MSP Viewpoint By Settlement Solutions, February 12, 2015 2:59 pm On February 11, 2015, the United States Court of Appeals for the Second Circuit published its opinion on Hoover v. New York State Department of Corrections and Community Supervision, Albion Correctional Facility, Sue Wojcinski, Sandra Durfee, Angie Maume, and Donna Baker, finding that if defendants considered plaintiff’s Medicare status to be critical in deciding whether to settle, they should have ascertained that status before agreeing to settle the case on November 5, 2012 for $750,000. As a result, the court affirmed the judgment of the district court, which had previously directed that judgment be entered in favor of plaintiff in the amount of $750,000 when the parties were unable to agree on the exact Medicare language in the settlement documentation. Plaintiff commenced this employment discrimination action on November 21, 2002. After several motions for summary judgment, and several changes in attorneys, at a conference on July 9, 2012, the court scheduled jury selection and trial to commence on November 7, 2012. On the morning of November 5, 2012, two days before the trial was scheduled to commence, counsel telephoned the judge’s chambers to report that the parties had reached a settlement. That afternoon, the material terms of that settlement were placed on the record. At that time, defendants’ attorney indicated he had offered and the plaintiff had accepted $750,000 total inclusive of damages, costs and fees to settle. Defense counsel also indicated he had advised plaintiff counsel that because of new Medicare and Medicaid laws, there would be some documents that would be forthcoming to determine how to word the stipulation. On the record, the judge asked whether the dismissal of the claims would be with prejudice in return for the payment of the settlement amount, and both counsel agreed. The judge further asked counsel to confirm the material terms of the settlement, and that although documentation needed to be executed to confirm the settlement, that the settlement would be effective November 5, 2012, notwithstanding any additional documentation which needs to be executed. Both counsel agreed. As a result, the court issued an order that same day indicating that because a settlement had been reached, the material terms of which were placed on the record, the jury trial scheduled to commence on November 7, 2012 was cancelled, as the parties would file an executed stipulation of dismissal. After spending the better part of a year attempting to finalize the language of the settlement documentation, the parties reached an impasse. Defendants then asked the court to compel plaintiff to execute their settlement agreement, and plaintiff asked the court to compel defendants to execute her version. On October 16, 2013, the United States District Court for the Western District of New York published its decision denying both motions and concluding instead that if the parties had not executed settlement documentation by November 8, 2013, the court would entertain a motion to enforce the settlement. Defendants insisted that plaintiff either provide a physician’s letter stating that she would not require further treatment, or else agree to a Medicare Set-Aside (MSA), whereby a certain amount of the settlement proceeds would be set aside to pay for future medical payments, in order to protect the parties against any potential liability to Medicare. The court however ultimately found that although defendants could have conditioned the settlement on plaintiff’s providing a physician’s letter or agreeing to a MSA, they did not do so. If defendants considered plaintiff’s Medicare status to be critical in deciding whether to settle, they should have ascertained that status before agreeing that the settlement was effective as of November 5, 2012. The court therefore ordered that if the parties had not executed settlement documentation by November 8, 2013, the court would entertain a motion to enforce the settlement. When the parties were unable to agree on the exact language of the settlement documentation, the court directed that judgment be entered in favor of plaintiff in the amount of $750,000. The State appealed that decision. On appeal here, the Circuit Court reiterates the fact that the parties expressed a clear intent to settle and placed the material terms of their settlement on the record, with neither party making any express reservation to be bound only by writing. As a result, the court agrees with the magistrate judge that “although defendants could have conditioned the settlement on plaintiff’s providing a physician’s letter or agreeing to a Medicare set-aside, they did not do so.” “If defendants considered plaintiff’s Medicare status to be critical in deciding whether to settle, they should have ascertained that status before agreeing that the settlement was effective as of November 5, 2012.” The court therefore affirms the judgment of the district court. We have all seen work comp and auto cases with MSP issues. And it is no longer unusual to read about medical malpractice or products liability cases with MSP issues. This however may be the first federal employment discrimination case dealing with MSP issues. More so however, this is yet another example of how waiting too long to prepare to protect Medicare’s interests in any type of settlement can end up affecting your agreement, provide you with unclear or unwanted language, or even worse, leave you unprotected from an MSP perspective. Over the last five years, there have been numerous state and federal cases concluding that despite Medicare’s guidance in workers compensation cases, and lack thereof in liability cases, courts will not disturb parties’ agreement to settle, even if it is clear both parties may be leaving the courtroom without appropriately taking Medicare’s interests into consideration. If you have questions concerning settling your Connecticut workers comp claim, call us at 860-523-8783.

Thursday, February 12, 2015

Worker's Comp Mileage Rate Increases

The mileage reimbursement rate for all travel expenses incurred on or after January 1, 2015 has increased to 57.5 cents per mile. This rate change applies to all claimants, regardless of injury date, and coincides with the federal mileage reimbursement rate pursuant to Section 31-312(a) of the Workers’ Compensation Act. Click here to read more about mileage reimbursement rates, including those for travel expenses incurred in past years.