Tuesday, March 26, 2013

Dealing with Medicaid liens

The state of North Carolina  sought part of  a 2.8 million dollar medical malpractice  recovery based on its own  statute that allowed it to be reimbursed 1/3 of any settlement for Medicaid benefits.  Wos v E.M.A., 568 U.S. ___ (2013) http://www.supremecourt.gov/opinions/12pdf/12-98_9ol1.pdf. In its March 20, 2013 decision, the U.S. Supreme Court found the state law unconstitutional and found the state could not assert a lien on $1.9 million in benefits it had paid when no portion of the settlement was allocated for medical expenses.   

 The U.S. Supreme Court addressed this issue previously and determined that  the federal Medicaid anti-lien provision, 42 U.S.C. 1396p(a)(1), pre-empts a state's lien unless the settlement is designated as payment for medical care.  Arkansas Dept. of Health and Human Services v Ahborn, 547 U.S. 268 (2006).

A similar challenge was asserted in Missouri in 2008 in  Doran v Mo. Dept. of Social Services, 2008 WL 4151617  for placing a state lien on a worker's compensation settlement.  District Judge Laphrey granted class status for "Missouri citizens who have received Medicaid and who had liens asserted and/or monies taken by the Defendants out of their third-party workers compensation settlements from August 15, 2001, where said settlements were unrelated to medical care and services, or where the liens asserted and or monies taken by the Defendants were in excess of the amount of said settlements related to medical care and services, in violation of 42 U.S.C. § 1396p(a)(1)."

The parties in E.M.A.  settled due to policy limits despite evidence of future medical projected at 40 million dollars.  The new case is important guidance for negotiating Medicaid liens, drafting settlements for cases that have a Medicaid lien and a warning of the potential medical costs in catastrophic cases. 

Thursday, March 14, 2013

Editorial: Managing the Pregnant Claimant Case

Pregnancy changes everything. It’s one of those old chestnuts, and its truth resonates in worker’s compensation cases too.

It may seem odd that treatment with some work place injuries might begin with a pregnancy test. Women now represent a significant portion of the labor force, and many injuries in Missouri occur with women during typical child-bearing age.

Some workers may question why it even matters to obtain such a test, or why it  is any of the employer’s business to know the results.  Sometimes the worker may be surprised by unexpected news.

Similarly, some employers question why their worker’s compensation dollar should be testing for pregnancy which is unlikely  pregnancy had anything to do with work injury or occupational trauma. In some cases, the question arises whether the employer should pay additional disability benefits when the worker became pregnant after a work injury before thinking about her employer first and whether she had already obtained MMI.

Medical Treatment

Pregnancy arguably may meet the statutory definition of accident as an 'unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.'   In a recent case the Missouri concluded the consequences of a flu shot was an “accident” even though the shot was not. Doyle v Lakeland Regional, 2011 MO WCLR Lexis 243 (Dec. 8, 2011).  This could certainly describe a number of pregnancies in Missouri that being expecting is a totally unexpected traumatic event.

A claimant’s rehabilitation may be prolonged due to pregnancy such as the decision not to pursue diagnostic testing or elective surgery because of concerns about tetragenic damage. See Nickels v Wireless Northwest, 2007 MO WCLR Lexis 109; Reid v Security Armored Care Services, 2005 MO WCLR Lexis 122. Delay in such diagnostic testing may delay treatment recommendations, determination of MMI, and appropriate work release decisions. A work place injury may also accelerate the need for bed rest or other restrictions because of concerns of instability or risk of fetal injury.

Pregnancy may  divest the employer’s statutory control to designate medical providers in work place injuries and indirectly influence return to work decisions.  An employer has no statutory authority to designate a provider for a non-occupational injury. It is often the OB-GYN who assesses capacity to work and the reasonableness of certain treatment. Cases in which there is treatment for both the work injury and for pregnancy complications further raises difficult issues segregating what treatment reasonably flows from a work injury.
In more difficult cases, the chronic pain patient may become pregnant which requires special considerations on appropriate treatment. See Bernardi, etal, Difficult issues in chronic pain patients arise when a candidate for spinal cord stimulator becomes pregnant, Neuromodulation. 2010 Oct;13(4):270-4.


Pregnancy may raise disputes whether the work injury itself was the prevailing factor in the medical condition.

For example, some falls may arise due to idiopathic conditions associated with pregnancy. Pregnancy changes to hormonal fluctuations, fluid shifts, and musculoskeletal changes may cause carpal tunnel syndrome more likely than some work place exposures. Bosch v Reuters America, 2010 Mo WCLR Lexis 8. Osterman, etal Carpal Tunnel Symptoms in Pregnancy, Orthop Clin. North Am. 2012 Oct;43(4):515-20. A claimant after childbirth may attempt to attribute residual back pain associated with the pregnancy and childbirth to a remote back injury early in the pregnancy.  When the original accident had minimal medical attention such allegations are closely scrutinized.  Post-partem depression can be an important factor to apportion mental conditions allegedly attributed to work.  See Healy, C, etal; Arch Women’s Health. 2013 Mar 6. Self-harm in postpartum depression and referrals to a perinatal mental health team: an audit study.


One issue that arises is whether an employer has an obligation to continue to pay benefits when treatment or diagnostic testing is postponed due to an existing or subsequent ‘superseding’ pregnancy prior to MMI. The Commission in a pre-reform case recognized an obligation to continue to pay TTD benefits, citing Larson’s treatise concerning the treatment of pregnant claimants. Carter v Tri State Motor Transit, 2006 MO WCLR Lexis 116, however, did not involve a pregnant claimant. The answer is not always that clear and the issue requires close analysis whether the claimant could work as a result of the work restrictions on light duty but for the pregnancy. A similar problem exists for the employee who could have worked with pain medication but can no longer take pain medication because of a pregnancy.

Other issues

Pregnancy issues can arise in unusual situations, such a determining or tolling the date of disability, Wales v Govt Employees Hospital Assoc, 9 MO WCLR (LRP) 1006 or assessing the rights of a posthumous child. Hanneken, Dec. v Storage USA, 2007 Mo WCLR Lexis 141.

This issue raises a public policy concern whether pregnancy  tests should be more routinely performed as a health screen prior to any imaging study or elective surgery or if the refusal to take a pregnancy test  warrants a basis to suspend statutory comp benefits. The issues of privacy are further implicated by disseminating privileged health information about pregnancy not caused by the work injury but which may have an important outcome on case management decisions.

The issue of pregnancy is often neglected in the evaluation of worker’s compensation cases. Pregnancy, and the related issue regarding the use of prescribed fertility medications to become pregnant, warrants closer attention to assess appropriate treatment guidelines of the injured worker.

Monday, March 4, 2013

Deposing The Expert Medical Witness: 'show me your papers, please'

A number of years ago there was a well-known family physician and osteopath in St. Louis who testified frequently for injured workers. Whenever any young defense attorney asked to see his file, he would smile broadly, reach below his desk and pull out a metal file. It was always a funny gag, no matter how many hundreds of times he performed it.

This raises the issue whether there is a right to see the expert's file, and if  the inability to inspect an expert's file allows a continuance or  bars admission of  the expert's testimony.

The exclusion of the testimony, rather than challenging the credibility of the expert, is a drastic remedy.

When an expert has limited qualifications, the testimony is usually admissible but provided less weight.  Generally, the admission or exclusion of expert opinion testimony is a matter of trial court discretion. Wingate v. Lester E. Cox Medical Ctr., 853 S.W.2d 912, 918 (Mo. banc 1993).The Commission, as fact finder, has discretion to determine an expert's qualifications to testify on specific matters. Lane v. Schreiber Foods, 903 S.W.2d 616, 621 (Mo.Ct. App. 1995).  There is no absolute right of a party to present expert testimony on any subject the party desires, and no absolute right to present testimony by any expert a party desires. Landers v Chrysler Corporation, 963 S.W.2d 275 (Mo. Ct. App. 1997) (allowing psychologist to testify regarding medical causation); Hudson v RHI America, 2007 Mo WCLR Lexis 31 (allowing audiologist to testify regarding causation).  The Commission criticized but did not exclude a medical expert for providing vocational opinions beyond his area of expertise. Kiemel v American Airlines, 2009 MO WCLR Lexis 80.

 So-called "venal" testimony is usually an issue of credibility and not admissibility.  See State ex rel Lichtor, 845 S.W.2d 55 (Mo. App. 1992).  A medical expert  in Wieda v Stupp Bros., 52 S.W.3d 602 (Mo. Ct. App. 2001); 2002 Mo WCLR Lexis 221,  was deemed“biased, uninformed and not credible” when the expert disputed causation on a prior diabetic condition which did not exist.  Other cases have criticized experts when they acted as "advocates" and not as "independent" medical examiners as if they had  somehow inadvertently became involved as expert witnesses. See Richardson v General Motors Corp., 2003 Mo WCLR Lexis 100; Andrews v City of Glendale, 2009 MO WCLR Lexis 88; Jezich v Lighthouse for the Blind, 2011 Mo WCLR Lexis 182; Sharmak v Allegiance Healthcare Corp., 2004 Mo WCLR Lexis 182; McKee v Anheuser Busch, 2002 MO WCLR Lexis 214.

Testimony from an expert can be barred if it is not the properly admissible.  This rarely occurs in the context of worker's compensation.   For example, criticisms within a medical recitation of medical credibility of other experts is improper. Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo. App. W.D. 1994). Under section 490.065, expert testimony is properly admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." An expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992). A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion probative force to be substantial evidence." Silman v. Montgomery & Associates, 891 S.W.2d 173, 176 (Mo. App. 1995), The essential test of expert opinion evidence is whether it will be helpful to the fact finder. See, State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo.App. 1992); Stucker v. Chitwood, 841 S.W.2d 816, 819 (Mo. App. 1992).
The failure of a testifying expert to disclose file materials pursuant to subpoena violates Rule 56.01(b)(4).  Generally,  the rules of evidence for civil cases in the state of Missouri  shall apply.  8 CSR 50-2.010(14). Section 490.065.    All material given to a testifying expert must, if requested, be disclosed.   "This indeed is a “bright line” rule.  It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information.” State ex rel Dandurand, 30 S.W.3d 831 (Mo. banc 2000).  Rule 56.01(b)(4).

Dandurand involved an expert who testified in response to a subpoena duces tecum and produced records that had previously been identified in a privilege log.   The documents which included a letter written by a defense attorney and a letter to the claims manager which were allegedly inadvertently sent to the expert.  A month earlier the attorney who wrote the letter refused the discuss the letters based on the claim of privilege. 

The lesson in Dandurand is that a party must produce the papers of a retained and testifying expert in response to a subpoena duces tecum.   

Section 287.210 sets up seemingly different rules for disclosures prior to hearing, prior to expert deposition, and prior to a motion to submit expert medical reports without deposition.  The party seeking to produce expert opinion without deposition testimony must produce all records received by the physician.  287.210.7.  The party seeking to produce expert opinion with deposition must produce  the expert's report  prior to deposition.  Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions.  This does not refer to the broader disclosure requirement of records required under a 60 day motion, but seems to include medical reports even of non-testifying experts prohibited by Rule 56.   The party seeking a possible sanction under Dandurand may consider more formal discovery of subpoena duces tecum.
Clearly, the primary policy behind "show me your papers" is  impeachment. The expert who loses a file at another office or who  destroys documents without identifying which documents were ever reviewed, may undermine the credibility of his testimony. By identifying the "papers"  used by the expert, the cross examiner may identify the expert may be uninformed, outside his league, or deliberating distorting the record in the role as a "venal" advocate.  The public policy to allow such discovery to see "papers" within an expert's file is consistent with the Division's policies for parties to be commonly informed.    The party tendering the expert may want to encourage production of the "papers"  to bolster the expert's testimony as being impartial and informed.  
The better practice is for the expert to identify which documents were reviewed and for the referring party to log which documents were provided.  Experts can always disagree the meaning of records but should not deep six documents they reviewed.    The capacity to "show me your papers" may be more challenging as more experts go "paperless" and an attorney's capacity to compare whether scanned documents are complete. 

It is in both parties interest to disclose records prior to expert testimony to avoid  a request to  "show me your papers" as  a discovery tool.  The expert deposition sometimes becomes one of the first opportunities to  review medical records when the parties fail to share records or when injured workers obfuscate a medical history.  No one benefits by paying in expert to sit quietly while an attorney flips through papers to compare files, except the expert.