Denver Worker's Compensation Info: 2016

Sunday, December 25, 2016

Merry Christmas & Happy Holidays from The Law Office of O'Toole & Sbarbaro, P.C.

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Monday, December 19, 2016

Employer resists providing benefits

Bockus v. First Student Services, et al., No. S-15784, 7137 (Alaska 12/02/16)

Ruling: The Alaska Supreme Court held that a driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying his third surgery.

What it means: In Alaska, an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

Summary: A school bus driver injured his back while pulling open a chain-link gate. He felt a pop in his back and severe pain radiating into his legs. He had two spinal surgeries, and his surgeon recommended a third. At about the same time, the employer scheduled an independent medical examination. This delayed the surgery because the surgeon would not schedule the surgery while the IME was pending.

The driver filed a workers’ compensation claim for the third surgery, and the employer’s doctor ultimately agreed that a third surgery was appropriate. The Alaska Supreme Court held that the driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying the third surgery.

The driver asserted that the employer delayed his surgery because it “had ample information” about the compensability of the surgery before the IME. The employer argued that it was merely exercising a statutory right to an IME and it rescheduled the IME at the driver’s request.

The court pointed out that the employer authorized the third surgery when it was required to answer the driver’s claim. The court pointed out that an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

The court explained that the IME was not directed at an opinion about the surgery itself. Instead, the adjustor listed nine treatment options and asked for an opinion about the reasonable necessity of all treatments.

The court found that this broad request was not reasonable because the driver and his surgeon, after trying conservative care, had decided that surgical treatment was the best option for addressing his condition.

The court pointed out that the employer had adequate information about the reasonable necessity of the surgery well before the surgery was authorized. The information the employer sought from the IME was not reasonably related to the narrow question of the compensability of and the need for the requested surgery.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Wednesday, December 7, 2016

Crossfit Related Workers' Comp

Maley v. Borough of Penbrook, 31 PAWCLR 191 (Pa. W.C.A.B. 2016)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board reversed the workers’ compensation judge’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

What it means: In Pennsylvania, where a police officer is not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test, his injuries sustained while performing this activity do not fall within the course of his employment.

Summary: The board reversed the WCJ’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

The employer had a wellness and fitness policy, which recommended that the officers stay physically fit so they can perform their duties in a safe and healthy manner. Because the employer did not have a workout room, the officer joined a CrossFit gym.

He also was a SWAT team member for the county. His participation in the SWAT team was not required by the employer. In denying benefits, the board noted that the officer’s participation in the employer’s physical fitness program was completely voluntary.

The employer did not mandate that the officer undergo any physical fitness tests, and choosing not to participate in the testing would not result in disciplinary action.

Also, although the officer’s involvement with the SWAT team required him to undergo periodic fitness testing, his participation in that program was not a mandatory part of his employment.

In addition, the officer was not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Thursday, November 24, 2016

Happy Thanksgiving from the Law Office of O'Toole & Sbarbaro, P.C.

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Sunday, November 13, 2016

Falt tire workers' comp

Diaz v. National Retail Transportation, Inc., No. A-3927-14T2 (N.J. Super. Ct. App. Div. 11/09/16, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a mechanic was entitled to benefits for his injury.

What it means: In New Jersey, when a worker’s intoxication is the “natural or proximate cause” of an injury, benefits will not be provided. Courts have interpreted the intoxication defense to mean that the worker’s intoxication must be the sole cause of the accident.

Summary: A mechanic for National Retail Transportation was injured when he attempted to move a heavy metal lift that fell over on him. He said that the lift fell when it tilted to one side. The mechanic said that after the lift fell on him, he noticed that one of the tires on the lift was flat.

National conceded that a tire was deflated. The mechanic filed a claim for workers’ compensation benefits. National denied benefits and asserted the intoxication defense, arguing that the mechanic’s intoxication was the proximate cause of the accident.

The mechanic admitted that before going to work, he drank at least two eight-ounce glasses consisting of half whiskey and half ice water. National’s toxicologist opined that, based on the blood sample drawn from the mechanic after the accident, that he was intoxicated and impaired at the time of the accident.

The New Jersey Superior Court, Appellate Division held that the mechanic was entitled to benefits.

The court concluded that substantial credible evidence established that the flat tire may have caused the lift to fall, and therefore, intoxication was not established to be the sole cause of the accident.

The court found there was sufficient evidence that the flat tire may have also contributed to the accident. Without testimony eliminating the flat tire as a cause of the accident, the court found that National did not carry its burden to prove that the mechanic’s intoxication was the sole cause of the accident.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Friday, November 11, 2016

Thank you Veterans, from the Law Office of O'Toole & Sbarbaro, P.C.

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Tuesday, November 1, 2016

Lyme Disease Qualifies as Disability

In Cook v. Gregory Press, Inc., 2016 N.J. Super. Unpub. LEXIS 1885 (App. Div. August 11, 2016), the Appellate Division reversed a trial court’s dismissal of a plaintiff’s disability discrimination case involving an employee eventually diagnosed with Lyme disease. The case involved Matthew Cook, who worked as a printing machine operator since 2002. In 2011, he began experiencing facial numbness, tingling in the hands, and neck pain. He saw a neurologist who thought he might have a demyelinating disease, recommending an MRI of the brain and spine.
Before Cook went for the MRI, his home was damaged by Hurricane Irene, and he was out of work for almost a week making repairs. He was given a day off from work on September 9, 2011 to undergo the MRI, which showed myelitis. His doctor recommended next a spinal tap to determine whether he might have MS, Lyme disease, or a virus. His boss granted him time off to get the spinal tap but suggested that Cook really had nothing wrong with him. The boss said he thought his problem was stress from the flood. Cook responded that this would not explain a lesion on his spine.
The spinal tap occurred on September 16, 2011, and Cook experienced complications from the spinal tap, including dizziness and headaches. He stayed in bed all weekend but went to work on September 19, 2011. He found that his head was pounding as the day went on and he had to leave to go home. His doctor prescribed fioricet. He could not work the next day due to severe headaches and nausea. His doctor prescribed Prednisone to relieve inflammation, but that made him jittery. His doctor next faxed a note to Cook’s supervisor saying that Cook needed to be out until released later in the week. Cook called his boss to ask for more time off, but his boss said that Cook better get back to work by Wednesday, September 21, 2011.
Cook did not feel well enough to return to work on September 21st but he did return anyway because he felt he had to. His head was pounding, and the loud noise from machines was aggravating his pain. He made a production mistake which delayed a printing job and wasted paper. His boss then proceeded to yell at him for the production mistake. Cook told his boss to stop yelling at him and then took off his headphones and threw them in a garbage can, walking away. His boss continued to yell at him, whereupon Cook told his boss that he would pay for the wasted paper but admonished his boss to stop yelling. The two men stared at each other, and then Cook walked away, telling his boss that all the yelling was aggravating his headache pain. Shortly thereafter, Cook was fired.
At some later point in time, Cook was diagnosed with Lyme disease and began intravenous therapy for 27 days. His doctor noted that the combination of Lyme disease and the effects of the spinal tap would naturally have an effect on Cook’s ability to handle stress. Cook sued under the New Jersey Law Against Discrimination (NJLAD) for wrongful termination and failure to make reasonable accommodation.
The trial judge threw out Cook’s case, finding that Cook was terminated for his bad attitude, not because of any disability. The judge also found that it not the responsibility of the company to initiate the interactive process where all the plaintiff says is that he has a headache.
The Appellate Division reversed for the following reasons. It said that the definition of disability under the NJLAD is much broader than the ADA. Under the NJLAD the plaintiff only has to show a physical or psychological condition which prevents the normal exercise of any bodily or mental function. One need not show a substantial limitation of a major life activity as is required under the ADA.
Under the court’s analysis, Lyme disease is a serious condition which qualifies as a disability under the NJLAD. It said that Cook’s doctor established that his patient had physical symptoms of Lyme disease while employed by Gregory Press. Because of his condition, Cook had to undergo medical testing that caused severe headaches and required steroid treatment, both of which affected Cook’s ability to work. The court also found that a jury could infer that the employer was aware of this disability, that Cook requested a reasonable accommodation in the form of leave, and that he could have been reasonably accommodated. The court said:
Plaintiff requested and was granted time off for the MRI and spinal tap. Plaintiff told Jeffrey (supervisor) about the spinal tap, and Gregory (another supervisor) approached plaintiff prior to the procedure and, despite knowing of the lesion on plaintiff’s spine, expressed his doubt there was anything wrong with plaintiff. Plaintiff returned to work on Monday with a severe headache, told Jeffrey about it, and Jeffrey permitted him to leave early. The next day, defendants received Dr. Monck’s note advising plaintiff was under her care and had an exacerbation in his neurologic condition, side effects of the spinal tap, and could not return to work until later that week ‘based on his recovery.’ Plaintiff advised Jeffrey that he was on steroids, the headaches could last a week and asked for the rest of the week off. Jeffrey ordered plaintiff back to work without further investigation or inquiry. Believing he had no choice, plaintiff returned to work the rest of the week, still suffering a headache and the effects of the steroids, which attributed to the production mistake. We conclude a jury could reasonably infer from this evidence that defendants knew of plaintiff’s disability, plaintiff requested a reasonable accommodation, plaintiff could have been reasonably accommodated, and defendants failed to make a good faith effort to provide a reasonable accommodation.
In New Jersey, it is rather easy for a plaintiff to prove a disability, so employers must take requests for time off work seriously when there are medical issues involved. The case is a primer for how an employer should not make termination decisions in a situation where an employee is having serious pain and symptoms from a cause as yet unknown. That the employer did not know plaintiff had Lyme disease at the time of firing was not a defense. The employer knew enough to realize that Cook may have a disability. The employer made a number of major mistakes in this case, first in pressuring the plaintiff to return to work before his doctor approved it, and second in engaging in a verbal confrontation while Cook was complaining that the yelling was aggravating the condition that he was treating for. It is also worth noting that the employer should not have speculated on the “real” problem that plaintiff was having, in suggesting his problems were related solely to stress. Lastly, the employer should have tried to engage in the interactive process before making the precipitous decision to fire Cook.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Friday, October 28, 2016

Presidential Election and Medicare

With the Presidential Elections on November 8th nearing around the corner, the industry has been wondering how the election of either Hillary Clinton or Donald Trump as President of the United States would affect Medicare Secondary Payer (MSP) Act compliance. *Note that this blogwire article is not intended to be an endorsement for either political candidate, political party, platform, or affiliation.

If Donald Trump is elected: Donald Trump’s website does not directly address his position on Medicare. However, according to a Forbes.com article, “The GOP platform advocates a “premium support model” for Medicare that would “guarantee to every enrollee an income-adjusted contribution toward a plan of their choice, with catastrophic protection.” In other words, privatization. Republicans would “save Medicare by modernizing it,” the platform says.”

Potential Impact: Currently 31% of Medicare beneficiaries are enrolled in a private Medicare Advantage Plan (MAP). That percentage is expected to increase, and if Trump is elected, we may see that number rise more rapidly. The effect on MSP would be that we would see a rise in conditional payments being made by MAPs, versus traditional Medicare.

Over the past several years, we have seen increased case law finding that Medicare Advantage plans have the same rights as Medicare to recovery, thereby allowing the Medicare Advantage Plan to assert double damages. As Medicare Advantage Plans have become even more aggressive with lawsuits for double damages than traditional Medicare has, we could expect that to continue. Primary payers would be wise to enact a proactive solution to ensure that Medicare Advantage Plan conditional payments are addressed, particularly in those Circuits where the Courts have found in favor of MAPs having these rights.

To learn more about MAPs and recommendations to address reimbursement of these payments, please join Franco Signor for a webinar wherein we will feature a special guest to discuss these Best Practices on November 18th, at 1:30 PM. Registration for the webinar can be found here.

If Hillary Clinton is elected: According to Hillary Clinton’s website, Hillary Clinton proposes to allow people 55 and older to buy into Medicare. She is calling this “Medicare for More.” Additionally, Clinton rejects the idea of gradually converting Medicare into a privatized system.

Potential Impact: Currently, the age to enroll into Medicare is 65. If people aged 55 and up could now buy into Medicare, there ideally will be more MSP claims to address as the Medicare population would expand to a younger age group.

Summary: While neither candidate can single-handedly make these changes and would need the support of Congress, with either candidate we are likely to see an increase in claims that would require MSP compliance. Whether we continue to see Medicare beneficiaries move to private Medicare Advantage Plans which continue to press for their rights to double damages reimbursement, or the Medicare pool expands to individuals 55 and up, MSP compliance will be more important than ever.

Additionally, CMS has indicated that an award for the Workers’ Compensation Review Contractor (WCRC) will take place in the second quarter of next year. With the new WCRC, we may also have thresholds for Liability Medicare Set-Aside (LMSA) review. 2017 will be an interesting year, and having a strategic partner that is ready to provide a holistic claims strategy to your MSP compliance program will be vital.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Wednesday, October 19, 2016

Rate drop of Recordable Workplace Injuries

Asst Sec of Labor Encouraged by BLS Report on Occ Injuries & Illnesses in 2015

Washington, DC – Occupational injury and illness data recently released by the Bureau of Labor Statistics showed a significant drop in the rate of recordable workplace injuries and illnesses in 2015, continuing a pattern of decline that, apart from 2012, has occurred annually for the last 13 years.
Private industry employers reported about 2.9 million nonfatal workplace injuries and illnesses in 2015, representing a decline of about 48,000 from 2014, despite an increase in total hours worked. The rate of cases recorded was 3.0 cases per 100 full-time workers – down from 3.2 in 2014. The rate is the lowest recorded since at least 2002, when OSHA recordkeeping requirements were modified.
Assistant Secretary of Labor for Occupational Safety and Health issued the following statement:
“We are encouraged to see the significant decline in worker injury and illness rates. This is the result of the relentless efforts of employers, unions, worker advocates, occupational safety and health professionals, and federal and state government agencies ensuring that worker safety and health remains a top priority every day.”
“Despite the decline, approximately 2.9 million private sector workers suffered nonfatal injuries and illnesses last year. That is still far too many. At OSHA, we will continue to do all that we can to continue driving the rate down.”
Click here to view: BLS Report on Occupational Injuries and Illnesses in 2015 (PDF)
Source: OSHA

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Friday, September 16, 2016

Amendment 69 and Workers' Compensation

Passage of Amendment 69 Could be Bad News for Colorado Workers’ Compensation
by Kaplan Morrell
Colorado has long been a sort of “proving ground” for new and tentative legislation. Some reasons for this is our status as a swing state and the ease of getting initiatives on our voting ballots in the first place. National groups frequently test proposals in our state, and often the proposed legislation is quite extraordinary. Take legalized recreational marijuana in 2012, for instance. This election year will be no different, and there will be several controversial initiatives on the ballot for voters to decide upon, such as “right to die” and raising the minimum wage to $12. One such ballot initiatives that is of particular interest for Colorado’s workers’ compensation system is universal health care.

Amendment 69 – ColoradoCare Ballot Initiative

This proposed amendment is an attempt to introduce a single payer system, also called universal health care, to Colorado. The proposed program, named ColoradoCare, would replace the Affordable Care Act. Estimates place the yearly price tag for ColoradoCare at around $25 billion dollars. A business and worker tax, along with an increased state tax rate, is meant to pay for the program. This tax option does away with deductibles and medical insurance premiums. However, this tax increase would practically double the current state budget, and saddles Coloradans with the highest income tax rate in the nation.

Accountability is questionable. This program is to be run by a board of 21 members who will be elected by plan members. Furthermore, there are no real specifics about what the new plan will cover, just what programs it will replace. The board will retain sole authority on coverage decisions. Hospital and doctor reimbursement levels are uncertain, calling into question continued quality care under the new system.

Potential Impact on our Workers’ Compensation (WC) Program

ColoradoCare will collect funding and administer the Colorado Workers’ Compensation program, as well as all other state and federal programs, with the exception of Medicare. This has the very real potential of destabilizing a well-functioning system. Our Workers’ Compensation program in Colorado is widely viewed as one of the best in the nation, as it efficiently balances affordable premiums for employers and the provision of fair benefits for injured employees. Denver Workers’ Compensation attorneys are a big part of this system.

– Overhaul of how the Colorado Workers’ Compensation program works

Currently, the system both replaces lost wages and provides medical care for injured workers. The proposed single-payer system will remove the healthcare portion of this system from the program and move it under ColoradoCare. It’s not known how the new set-up will work with only wage replacement under WC, but confusion and disarray are far too likely. There is also the question of cost. Employers currently pay for Workers’ Compensation insurance to cover all of the benefits for injured employees. They will now pay a higher tax rate for ColoradoCare and still be on the hook for the indemnity portion of Workers’ Compensation. It’s a quagmire.

– Unsettles a working system

Workers’ Compensation in Colorado does more than pay out benefits. It promotes worker-safety programs and encourages employers to prevent workplace injuries. Providers and established Workers’ Compensation health professionals are experienced in managing worker injuries. They collaborate with employers and workers to help them get to maximum medical improvement and get back to their jobs safely, whenever possible.

– Eliminates subrogation

Workers Compensation is a no-fault system. But sometimes, there is fault, due to a non-employer third-party. In these cases, Workers’ Compensation insurers can pursue monetary recovery from the negligent party through subrogation. With the passage of Amendment 69, first rights to subrogation cedes to ColoradoCares. This loss of funds impacts the insurers and injured workers ability to recover for injuries.

– More Unknowns

At this time, it is not even known whether ColoradoCare will cover the incidental expenses that Workers’ Compensation in Colorado addresses, such as transportation to medical appointments. And there is no guarantee that injured workers will continue to be able to see qualified professionals in occupational medicine and other specialties that are required to give injured employees the best possible specialized care in a timely manner. Overall, there are simply too many variables and unknowns to enthusiastically support Amendment 69 for implementation of ColoradoCare in our state this November. For individuals who are injured at work, the best thing they can do is seek a qualified attorney. Our top rated Denver workers’ compensation attorneys can help injured workers file their claim, get the medical care they need, and help them seek lost wages to help cover living expenses and medical bills.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Tuesday, September 6, 2016

Companies Can't Set Own Rules For Injured Workers

A national campaign to rewrite state laws and allow businesses to decide how to care for their injured workers suffered a significant setback Tuesday when the Oklahoma Supreme Court ruled that Oklahoma's version of the law is unconstitutional.

The 2013 legislation gave Oklahoma employers the ability to "opt out" of the state workers' compensation system and write their own plans, setting the terms for what injuries were covered, which doctors workers could see, how workers were compensated and how disputes were handled. The statute was backed by the oil and gas industry and retailer Hobby Lobby.

Buoyed by the success in Oklahoma, proponents took the idea nationwide as a coalition led by Wal-Mart, Lowe's and several of the largest retail, trucking and health care companies sought to pass similar laws across the country. Bills and draft proposals have been floated in Tennessee, South Carolina, Georgia, Mississippi, West Virginia, Wisconsin and Illinois.

Last year, an investigation by ProPublica and NPR found that the plans typically had lower benefits and more restrictions than workers' comp. The story was part of a series on how states have been dismantling workers' comp, which was designed a century ago to protect businesses from lawsuits while providing medical care and lost wages to workers who had been hurt on the job.

Tuesday's decision is the latest in a series of state Supreme Court rulings that have struck down several business-driven workers' comp laws featured in the ProPublica and NPR investigation.

The Florida Supreme Court struck down laws that placed strict caps on attorney fees and limited workers to two years of temporary disability pay regardless of whether they were able to return to work. Two-year caps have also been passed in California, North Dakota, Oklahoma, West Virginia and Texas.

In addition, the top Oklahoma court in April overturned a provision that drastically cut compensation for workers who suffered permanently disabling injuries. Florida, New York and Tennessee have also significantly reduced benefits for such injuries in the past 13 years, but those provisions are still in place.

The stories also prompted two groups — one of academics and one of workers' comp regulators — to schedule separate forums later this month to discuss the various changes that have occurred and ways to improve workers' comp.

Oklahoma's ruling leaves Texas as the only state that lets employers opt out of workers' comp insurance.

Bob Burke, a longtime workers' comp attorney who has filed several successful challenges to Oklahoma's new law, called opt out "the biggest attack on the American worker" since he started practicing law.

Had the Supreme Court not acted, the Oklahoma opt-out law "would have deprived injured workers out of necessary surgeries and weekly benefits," he said in an email. "Opt out also would have allowed companies to shift the cost of paying for work-related injuries to Medicare, Medicaid and Social Security."

Bill Minick, a Dallas lawyer whose company PartnerSource wrote most of the Oklahoma opt-out plans and about half of those in Texas, said in a statement that the ruling was specific to "Oklahoma's unique constitution." He vowed that his company and other supporters would continue their efforts to promote the alternative plans in other states.

"We believe it's critical to provide better care and benefits for injured workers, decrease the number of disputed claims and significantly decrease insurance premiums and claim costs for all employers," he said.

The Oklahoma case involved an employee at Dillard's department store who injured her neck and shoulder while lifting shoe boxes in 2014. Dillard's, which had opted out of workers' comp and created its own benefit plan, initially paid for her medical care. But the company later denied her claims, insisting that any further damage and surgeries she might need were due to a pre-existing degenerative condition and not her injury at work.

In a 7-2 ruling, the justices found that such opt-out plans were unconstitutional because they treated one group of injured workers differently from all other injured workers in the state. In a concurring opinion, Justices Noma Gurich and Tom Colbert noted that while most Oklahoma workers have 30 days to report an injury and can request a hearing before a judge, Dillard's employees had to report injuries by the end of the workday and could only appeal in writing to a committee made up of people picked by the company.

The court sent the case back to the state's workers' comp commission to determine whether the injury was work-related and what benefits, if any, the woman should receive.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Wednesday, August 17, 2016

More drugs.

According to the Philadelphia's "The Inquirer", Medical advisers to the FDA have recommended approval of a new abuse-deterrent formulation (ADF) opioid named Arymo ER by Egalet Corp. In fact, the vote was overwhelming; 18-1. This new painkiller is an extended-release morphine that comes in 15mg, 30mg and 60mg doses. A final decision by the FDA on that recommendation is expected by mid-October.
When compared to MS-Contin, a pharmacologist with the FDA reportedly said ...
The numerical difference or outcome in the data was less than 5 percent, raising a question about Arymo's "clinical relevance"
I applaud the concept of abuse-deterrence formulations of opioids and other dangerous drugs that can be abused. I appreciate the fact there truly are some people that need opioids for "before/during/immediately after surgery, cancer, AIDS/HIV, end-of-life care" (my broadbrush interpretation of appropriate use of opioids). I agree abuse (non-medical use) is rampant with opioids (and other dangerous drugs). I am an "all of the above" (all options on the table) kind of person when it comes to resolving our painkiller epidemic, and I do think ADF has a part to play.
But to me the bigger problem is ... legitimate prescriptions by legitimate prescribers used legitimately by patients that are clinically inappropriate. Especially for the mostly inappropriate treatment of chronic pain.
So is the introduction of a new drug just propping up bad practice? Is Big Pharma using ADF to maintain their revenues (will Arymo be a money-maker)? Will we see abuse of non-ADF drugs decline? Will we see prescriptions change from non-ADF to their ADF equivalents? Will we see generics (the majority of drugs prescribed & dispensed) also become ADF? As usual, I have more questions than answers.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Tuesday, August 9, 2016

Win for Medicare Advantage

In a 2-1 final decision out of the Eleventh Circuit Court of Appeals, Humana Medical Plan, Inc. v. Western Heritage Insurance Company, Humana prevailed in recovering double damages under the Medicare Secondary Payer (MSP) private cause of action due to Western Heritage’s failure to reimburse Medicare conditional payments. Recall that last year the District Court of Appeals had also found in favor of Humana, to which Western Heritage appealed that decision to the Eleventh Circuit. Oral arguments were heard in the Eleventh Circuit earlier this year, and the industry has been eagerly waiting the Eleventh Circuit’s decision.
Background/Recap of the Facts: In January 2009, Mary Reale, a Humana Medicare Advantage Plan beneficiary, was injured at Hamptons West Condominiums. Ms. Reale treated for her injuries and Humana paid for the treatment, totaling $19, 155.41. In June 2009, Ms. Reale and her husband sued the condominium in Florida state court for her injury. In March 2010, while her litigation was pending, Humana issued to Ms. Reale an Organization Determination in the amount of $19, 155.41. Although an administrative appeal process was available, no party appealed Humana’s Organization Determination. On April 20, 2010, in return for $115,000 from the condominium and its liability insurer, Western Heritage, the Reales released the condominium and Western Heritage. The Reales represented in the settlement agreement that there was no Medicare or other lien or right to subrogation. The Reales also agreed to indemnify the condominium and Western Heritage against any Medicare lien or right to subrogation.
On May 7, 2010, Humana sued the Reales and their attorney in the Southern District of Florida seeking reimbursement. The Reales sought dismissal, to which the court agreed, holding that a Medicare Advantage Plan (MAP) does not have a private cause of action to recover reimbursement from a beneficiary under the MSP. Likely in response to Humana’s suit, the condominium and Western Heritage attempted to make Humana a payee on the settlement draft to the Reales. The Reales then sought sanctions against Western Heritage for failure to comply with the settlement agreement. At that point, the parties agreed instead that the Reales’ attorney would hold $19, 155.41 in trust out of the $115,000 settlement amount pending resolution of the Reales’ litigation, and Western Heritage then tendered the $115,000 settlement to the Reales.
At this point the Reales sued Humana seeking a declaration as to what they owed Humana, however the court ultimately ruled that it lacked jurisdiction to adjudicate the dispute between Humana and Ms. Reale as to her MAP benefits. Subsequently, on January 11, 2011, Humana sued Western Heritage in the action upon which this appeal proceeded. Humana’s initial counts in its complaint were: 1) Double damages under the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A); 2) Declaratory relief under the Medicare statutory and regulatory scheme; 3) Damages under several state law theories including unjust enrichment and a contract implied by law.
Eleventh Circuit Decision: Through analysis of the MSP and CMS regulations, the Eleventh Circuit found that MAPs have a right to a private cause of action for double damages against a primary plan where reimbursement has not occurred. Specifically, the Eleventh Circuit found the following persuasive: 1) CMS Regulations- A MAP “will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.” 42 C.F.R. § 422.108(f); 2) Statutory Basis- The MSP private cause of action, located at 42 U.S.C. § 1395y(b)(3)(A) is unambiguous and broadly permits any party with standing (including a MAP) to sue a primary plan. The Third Circuit in the In Re Avandia case also held that MAPs are included within the purview of parties who may bring a private cause of action.
Western Heritage countered that the MSP does not govern MAPs at all and that the MAP right-to-charge provision instead governs when and whether a MAP is a secondary payer. However, the court rejected this argument finding that the right to charge provision reveals that MAP payments are made secondary to primary payments under the MSP.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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Tuesday, July 5, 2016

20% Florida Workers Comp Rate Increase

The Florida Office of Insurance Regulation (OIR) announced July 1 that the National Council on Compensation Insurance (NCCI) filed an amended rate filing to address a third legal change affecting Florida’s workers’ compensation system. This amended filing increases NCCI’s initial proposed combined average rate increase from 17.1 percent to 19.6 percent.

Individual projected rate impacts for all three recent legal changes include the following:

A 2.2 percent projected rate increase for the June 9th Florida Supreme Court decision in the case of Westphal v. City of St. Petersburg, in which the Florida Supreme Court found the 104-week statutory limitation on temporary total disability benefits in Section 440.15(2)(a), Florida Statutes, unconstitutional because it causes a statutory gap in benefits in violation of an injured worker’s constitutional right of access to courts. The Supreme Court reinstated the 260-week limitation in effect prior to the 1994 law change.
A 15 percent projected rate increase for the April 28th Florida Supreme Court decision in the case of Castellanos v. Next Door Company, which found the mandatory attorney fee schedule in Section 440.34, Florida Statutes, unconstitutional as a violation of due process under both the Florida and United States Constitutions.
A 1.8 percent projected rate increase related to updates within the Florida Workers’ Compensation Health Care Provider Reimbursement Manual (HCPR Manual) per Senate Bill 1402. The manual became effective on July 1, 2016.
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NCCI is proposing an effective date of October 1, 2016 for new and renewal workers’ compensation policies and that the 19.6 percent rate increase apply to all workers’ compensation policies in effect as of October 1, 2016 on a pro-rata basis for the remainder of each policy’s term.

OIR has scheduled a public rate hearing for August 16, 2016 at 9:00 a.m. to give NCCI an opportunity to discuss the filing and interested parties and other stakeholders the ability to provide testimony or comments. The hearing will be held in the Jim King Committee Room, 401 Senate Office Building, 404 South Monroe Street, Tallahassee, Florida. A media advisory with more details will be released at a later date.

NCCI is a licensed rating organization authorized to make rate filings on behalf of workers’ compensation insurance companies in Florida. The Florida Office of Insurance Regulation has primary responsibility for regulation, compliance and enforcement of statutes related to the business of insurance and the monitoring of industry markets.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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Monday, July 4, 2016

Happy Fourth of July from The Law Office of O'Toole & Sbarbaro, P.C.

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Thursday, June 30, 2016

Preventing falls - Liberty Mutual

Boston, MA -(BusinessWire)-

Working age adults account for more than two-thirds of the estimated 9.9 million annual fall-related injuries impacting U.S. adults according to Liberty Mutual’s latest research, highlighting the importance of companies actively protecting employees and the public from falls.
Liberty Mutual researchers quantified the number of annual fall-related injuries for U.S. adults based on 2008-2014 data from the National Health Interview Survey1. Surprisingly, fall injuries were almost equally divided across three age groups, with 32.3 percent occurring among older adults (ages 65+), 35.3 percent affecting middle-age adults (ages 45-65) and 32.3 percent affecting younger adults (ages 18-44). The research findings appear in PLOS ONE, a journal that reports original research from all disciplines of science and medicine.
“While there is considerable research on falls among older adults – those age 65 and up – less is known about fall-related injuries in middle-age and younger adults,” notes Santosh K. Verma, MD ScD, senior research scientist with Liberty Mutual Research Institute for Safety. “Our research provides the most comprehensive picture to date of the frequency of falls for U.S. adults.”
Beyond quantifying the number of annual fall-related injuries among U.S. adults – and their distribution by age group – the Liberty Mutual research produced two other sets of important findings:
A summary by age group of the average and total lifetime cost of annual unintentional fall-related injuries resulting in death, hospitalization or emergency department visit
A summary by age and gender of the annual average fall-related injury types
“By drawing attention to the magnitude of this major public health concern, the findings will help companies in their ongoing efforts to protect workers and the public from falls,” says Wayne Maynard, technical director, Liberty Mutual Risk Control Services. “Protecting these groups provides a host of benefits for employers, from keeping skilled employees on the job, to protecting tight margins from the costs associated with workers compensation and general liability claims.”
Liberty Mutual’s annual Workplace Safety Index has consistently cited falls among the top 10 causes of the most serious and costly nonfatal US work injuries. The present study provides a broader view of falls, examining those that occur both at work and outside of work.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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Tuesday, June 28, 2016

NSC: One Third of Workers Say Their Employers Prioritize Productivity Over Safety

Itasca, IL – The National Safety Council recently released survey results showing 33% of the 2,000 employees surveyed across the nation believe safety takes a back seat to productivity at their organizations. The percentage was even higher among employees in high-risk industries. Sixty percent of respondents in the construction industry, and 52% of those working in agriculture, forestry, fishing and hunting, felt safety was less of a priority than finishing tasks. These findings are particularly alarming because those industries are first and second when it comes to the number of occupational deaths each year.

The survey is based on the Council’s Employer Perception Surveys and is released during National Safety Month, observed each June to raise awareness of the leading causes of preventable death and how Americans can reduce their risks.

“Every employee deserves a safe workplace,” said NSC President and CEO Deborah A.P. Hersman. “While some of our findings were encouraging, others were a stark reminder of how far we still have to go to ensure safety is every employer’s highest priority.”

The number of workplace deaths in 2014 was as high as it has been since 2008, according to data from the Bureau of Labor Statistics. More than 4,800 workers died from incidents such as car crashes, contact with objects or equipment, exposure to harmful substances, and slips, trips and falls.ⁱ

Gauging Americans’ perceptions toward their safety at work may help provide further insight into the increasing numbers of workplace deaths. Other key survey findings include:

49% of temporary and contract workers, and 41% of employees working in healthcare settings, said they were afraid to report safety issues
62% of construction workers, and those in agriculture, forestry, fishing and hunting, believe management does only the minimum required by law to keep employees safe
61% of employees in the agriculture, forestry, fishing and hunting industry say there is resistance to working safely among employees
70% of employees say safety training is part of their orientation and that employee health and well-being is promoted at work

Employers interested in improving their safety culture can join the Journey to Safety Excellence, which provides a roadmap for reducing incidents and saving lives. Visit nsc.org/journey for more information.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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