Wednesday, September 25, 2013

Feds block comp attys from seeing medicare data on-line

The Center for Medicare and Medicaid Services has issued new interim rules and provided a period for comment.  Federal Register 78-183 (Sept. 20, 2013).

The SMART Act  provided a web portal to access conditional payment amounts asserted by Medicare.   Finding out the amount of conditional payments and weeding unrelated medical claims has always been a wrench in the works of trying to efficiency resolve state comp claims.  Now people can go on one line and see what is being claimed.   That is, of course, unless the person is an attorney.   Under current regulations, attorneys who represent workers or employers must pre-register but can't access parts of the information because it violates federal rules of privacy.  (FISMA).   CMS in the proposed rules plans to get on that and fix the problem once they "develop a solution" and is sure they'll have something rolled out in January 2016, 3 years after the SMART Act provided access to make the process internet friendly and easy for everyone.   CMS proposes to "develop a solution" a new identify verification for attorneys because apparently attorneys need to be measured twice and cut once. 

Medicare wants plenty of time to let everyone know what it claims as conditional payments and now recommends 6 months in advance notice for anyone planning to settle a case.  Don't even think about settling it on the courthouse steps.    The new proposed rule allows various extensions including new enumerated reasons why Medicare should take longer just in case there is  terrorism, riots or fire beyond the "ordinary" control of government.  This avoids letters from angry citizens wondering why Big Gov is not doing its job when there are riots in the streets.  An attorney disputing any claim for unrelated items can do it "once and only once."  There is no administrative or judicial review of the claims dispute process. 

Attorneys can get a  pro rata reduction in accordance with 42 CFR 411.37 but indicates that new demand letters must obtained if the parties wait more than 30 days to report a settlement. CMS is still trying to figure out how parties can actually report it on line and are working on that too. Cases involving toxic exposure and joint replacement require additional reporting. 

Parties who wish to comment are instructed how to do so electronically, by mail, by overnight mail, or by hand.  Federal regulations prevent someone from delivering it by hand because access to the building is restricted.   The irony of such a statement is probably lost to CMS.   


Wednesday, September 11, 2013

Young woman who won't quit smoking awarded permanent total

The injured worker hurt her back lifting some books, had back surgery  and asserts she  was unable to work due to nonunion and intractable back pain.  The issue in the case was whether the employer owed for life-time benefits when her addiction to smoking prevented her from having another back surgery to improve her condition. Miller v Andersen Merchandisers, 2013 MO WCLR Lexis 163 (August 30, 2013).

An employer does not owe for compensation if it can prove the employee unreasonably refused treatment.  Section 287.140.5 provides:
No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued, or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division nor the commission, inconsiderable in view of the seriousness of the injury.
 The ALJ  concluded the employer failed in its burden to show the claimant's inability to stop smoking was "unreasonable" based on testimony that she had smoked for over a decade and was unable to stop and had attempted nicotine patch, hypnosis and participated in a smoke cessation programs offered by the employer. 

The ALJ further noted  that the employer technically had not "offered" surgery, because the two surgeons declined to offer it in claimant's current state of nicotine addiction.  The employer in the case stipulated claimant  was permanently and totally disabled and stipulated to  open medical. Both of claimant's medical experts concluded she was not at maximum medical improvement.

A dissent argued that claimant's smoking may have been a contributing factor to non-union in the first place and found claimant was not entitled to total disability because she would not quit smoking.  The Commission affirmed the ALJ opinion without comment.  The ALJ noted the statute essentially created bad public policy to reward someone for bad lifestyle choices but deferred to the legislature to address that issue.

The court of appeals has previously found that a claimant who failed to  make lifestyle changes such as losing weight or quit smoking was an unreasonable refusal  to deny benefits under  287.140.    Sutton v Vee Jay Cement Contracting, 37 S.W.3d 803 (Mo. App. 2000), Kern v General Installation, 740 S.W.3d 691 (Mo. App. 1987).   This was not an issue in Miller as the employer stipulated to open medical and claimant demonstrated both a need for surgical treatment and non-surgical pain management with narcotics.

The case is important in several respects.

The employer stipulated it owes for future medical but didn't owe for total disability because claimant did not succeed in smoke cessation programs.   The Commission appears to construe 287.140.5 that if the worker makes a good faith effort (as in this case with use of hypnosis, nicotine patches,  and participating in the smoke cessation program etc.) the refusal is not unreasonable.   Claimant stated she wanted to have the surgery.  Arguably, the result could have been the same even if claimant stated she didn't want the surgery and elected to treat conservatively based on testimony that nearly a third of re-do surgeries fail even in optimal circumstances of a non-smoking patient.

The only issue in Miller was whether the employer owed for total or for partial disability. The Second Injury Fund was not a party and typically has liability in cases in which a prior disability combines with a current injury to render a worker unemployable. 

ALJ Ruth
Atty:  Moreland, Shelledy
Experts: Musich, Woiteshek, Polinsky, Weimholt

Wednesday, September 4, 2013

When an employer is gone who directs medical?

Do insurers gain the right to select a medical provider when the employer is no longer in business?  In Lyman v Missouri Employer's Mutual Insurance Company, 407 S.W.3d 130 (Mo. App. 2013) 2013 Mo App. Lexis 970 (August 23, 2013), the court of appeals reversed a summary judgment in favor of the employer which found the insurer had the right to direct care. Section 287.140  expressly grants that right to employers.

Claimant obtained a judgment for permanent and total disability with open medical flowing from a 2002 accident when he fell from a ladder.   He claimed the carrier was responsible for unauthorized chiropractic treatment because the statute only provided the employer the right to direct care and the employer was no longer in business. 

The issue was one of first impression.  The court  declined to decide it and found summary judgment was inappropriate because the issue was not ripe. The parties agreed that the employer was out of business,.  The court noted that members of an LLC can still make some decisions even after dissolution, and summary judgment was inappropriate when there was an unresolved material fact if anyone with the employer was willing or able to make such a decision.  The court noted the lack of evidence of articles of termination, even though termination was not a disputed issue.

Missouri is unique among many states as the employer has the right to direct medical care. This case demonstrates a fascinating problem who manages medical decisions when the employer is no longer around. Practitioners trying permanent total cases or drafting settlement contracts with open medical should carefully consider whether to reserve the employer's right to direct medical care, and contingency plans if the employer is no longer around.  

J Burrell
Atty:  Bowles, Platter

Employer owes total for failed knee surgery

A claimant who had unresolved knee pain and became depressed recovered permanent total benefits against the employer, according to the court of appeals in Palmentere Bros. Cartage Service, 2013 Mo. App. Lexis 1021 (September 3, 2013).

In this case a 42-year old woman had multiple physical injuries when a tractor trailer went off the road in Kansas.  She spent the next 4 years undergoing 3 different knee surgeries, including a partial knee replacement.  She states she was unable to tolerate prolonged standing, operate a clutch, and had constant pain.  She treated with a psychiatrist and was hospitalized due to severe depression and anxiety disorder.  She returned to work for about another 3 years but reached a point where a doctor concluded she was unemployable because of her emotional state.

The Commission affirmed an award against the employer for permanent and total disability benefits because of the combined orthopedic injuries to the neck, back and left leg and her psychiatric condition as she "presents  for employment utilizing a cane for ambulation and has a depressed emotional state." 

Dr. Jones examined claimant as court-ordered exam pursuant to her companion case for benefits in Kansas. He felt she could work sedentary positions and didn't need any more treatment for the knee.

The Commission found the overwhelming evidence supported the last accident alone caused claimant's total disability, and found less credible evidence from a doctor and a vocational expert that any disability flowed from a combination and not the last accident alone. Interestingly, the Commission felt the ALJ was unduly harsh for criticizing the methodology when the experts "failed" to perform certain testing, lacked corroborating records, and did not even meet with the claimant.  This case  demonstrates an interesting tension between the court of appeals deferring to findings of credibility and the commission feeling restrained to question or document how experts reached their opinions even when methodology impaired their credibility. 

The employer argued that the court  had to follow uncontroverted vocational opinion even though this position was contrary to  Carkeek v Treasurer of the State-Custodian of Second Injury Fund, 352 S.W.3d 604 (Mo. App. 2011).  The Angus v Second Injury Fund, 393 S.W.3d 294 (Mo. App. 2004) did not eliminate the Commission's discretion to evaluate the extent of disability from the last accident alone.

The court noted the experts who supported liability for the Second Injury Fund were found by the Commission not to be credible, their opinions were not based on any records of a prior condition causing any obstacle or hindrance to employment, and claimant's own testimony denied any significant prior symptoms and described substantial post accident treatment including multiple surgeries and hospitalization for suicide ideation.

J:  Hardwick
Atty:  Greenwalk, Landham, Lowe, Taylor
Experts:  Keenan, Jones, Drieling
Treaters:  Robichaux, Arretteig

Commission case