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 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 [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] [5] Share this post Monthly Archives Monthly Archives