Text Box:   Text Box: A PUBLICATION BY THE LAW FIRM OF Clifton, Mueller & Bovarnick, P.C.                                                                               ATTORNEYS AT LAW

Text Box: CURRENT EVENTS, ARTICLES, AND SUMMARIES OF RECENT CASES AND LEGISLATION IN THE AREAS OF WORKERS’ COMPENSATION, LIABILITY, INSURANCE, AND EMPLOYMENT LAW Text Box: 2008

Text Box: march

Text Box: SM Text Box: NEW AMENDMENTS ENHANCE ENFORCEMENT UNDER MEDICARE’S SECONDARY PAYER STATUTE

Text Box: President Bush signed Senate Bill 2499 into law on December 29, 2007.  It will make significant changes to the Medicare Secondary Payer Statute (MSP) effective July 1, 2009.  The new legislation applies to workers’ compensation, liability insurance, no-fault, and group health insurance.  SB 2499 is the next step in CMS’ evolving process of implementing more strident requirements to increase primary payer compliance with the MSP.  SB 2499 places an affirmative obligation on primary payers to (a) determine if the claimant is entitled to Medicare; and (b) notify Medicare of said entitlement.  An important feature of the new legislation is the expressed requirement that primary payers determine a claimant’s Medicare status.  The change is significant as this obligation is not technically required under the current statutory or regulatory framework.  Specifically, primary payers must, “determine whether a claimant, including an individual whose claim is unresolved, is entitled to benefits under [Medicare] on any basis.”  Based on the exact wording of this section, it appears that the obligation will extend to all cases, whether or not resolved, that is, even if liability remains contested.  If it is determined that the claimant is entitled to Medicare, then the primary payer must put CMS on notice “within a time specified by the Secretary after the claim is resolved through settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).  Unfortunately, key aspects of  

Text Box: the notice and reporting obligations remain unknown at this time.  The only known information to be reported to Medicare is the “identity of the claimant.”  Under the legislation, the Secretary of Health and Human Services will provide other relevant information at a later date. Perhaps the most significant feature of SB 2499 is the substantial civil penalty for non-compliance — $1,000 per day, per claim, which is in addition to any other penalties available at law.  Therefore, all primary payers should consider implementing practical approaches to identify cases involving Medicare beneficiaries.  There are certain factual “red flags” that may identify Medicare entitlement, including: · Claimant’s age: Claimant’s who are age 65 or older are likely Medicare entitled based solely on their age; · Claimant has not worked for 30 months or more because of an injury-related disability.  The unemployment  could suggest the Claimant may be entitled to Medicare based on disability; · Claimant has been receiving SSDI for 24 months.  A claimant will become Medicare entitled as a part of an SSDI award.  In most cases, a claimant becomes entitled to Medicare after receiving SSDI for 24 months.  However, it is important to note in some cases, a claimant’s SSDI and corresponding Medicare benefits are awarded retroactively.

Text Box: If it is determined that a claimant is a Medicare beneficiary, then the case should be reported to the Medicare Coordination of Benefits Contractor and a request for a conditional payment estimate should be made from Medicare’s Secondary Payer Recovery Contractor.  Medicare Set Aside Arrangements and Medicare Secondary Payer Statute’s requirements are growing increasingly complex.  Please contact any of the attorneys at Clifton, Mueller & Bovarnick, P.C. with questions concerning protecting Medicare’s interests for conditional payments and protecting yourselves from civil penalties for violation of the statute.

Text Box:   Text Box: JUST A REMINDER: RULE  5-11(B), W.C.R.P. requires that an insurer shall file a final payment notice in every COMPENSABLE claim THAT WAS FILED WITH THE DIVISION in which benefits were paid.  The final payment notice shall reflect cumulative totals for all benefits paid and be submitted in the format required by the Division.  A final payment notice shall be filed after all compensation issues have been resolved by final admission, final order, or stipulation.  The final payment notice shall be filed WITHIN 60 days after the claim is closed.  If a claim is reopened a final payment notice shall be filed within 60 days after the reopened claim closes.  The Division requires the filing of a final payment notice even on a denied claim that is settled.

Text Box: Here is a question on which nobody involved in a Workers’ Compensation claim should ever waste time:  Do I have to provide this medical report to the other side? The answer is always yes.  Always.  Did you receive a report of a records review?  Provide it.  Have you received an IME report (that unfortunately was not favorable to your position)?  You must send it off to the other side.  C.R.S. 8-43-404(2) requires that the employee receive a copy of any report generated from an independent medical examination scheduled by an employer.  The report is “. . .to be furnished to the employee at the same time it is furnished to the employer, insurer, or Division.” The Rules of Procedure are also quite definitive on the issue.  Workers’ Compensation Rule of Procedure 5-4(A)(5) states that, for any claim that has been reported to the Division: A copy of every medical report not filed with the Division shall be exchanged with all parties within fifteen (15) working days of receipt. That is the entire rule.  No exceptions are allowed.  If the medical report is unrelated to the work injury, it must be produced under Rule 5-4.  Even if the report is completely against your position, it must be produced.  Any failure to comply with the rule exposes a party to penalties for failing to comply with the Rules of Workers’ Compensation.  (So be sure to keep an eye out for those reports or records obtained by claimant’s attorneys that are not exchanged within 15 business days!)

Text Box: VICTORIES IN THE TRENCHES Text Box: In Daniel Speier v. Industrial Claim Appeals Office, 07 CA 0677 (February 7, 2008), the Court of Appeals affirmed the decision of the Industrial Claim Appeals Office affirming the administrative law judge’s dismissal of claimant’s Petition to Review as untimely and denial of the claimant’s motion for reconsideration.  The claimant sustained an admitted injury in 1996.  In 2006, the Respondent requested a hearing on the reasonableness of the claimant’s continuing use of narcotic pain medications.  The ALJ determined the claimant’s use of narcotics was not reasonable and necessary.  The Order was mailed August 17, 2006.  However, although timely received, it “was mistakenly not given” to claimant’s counsel until September 11, 2006, when she immediately filed a Petition to Review.  The ALJ dismissed the untimely filed Petition to Review.  Claimant moved for reconsideration.  The motion was denied.  The denial was affirmed by the Industrial Claim Appeals Office. Claimant then appealed to the Court of Appeals arguing the Petition to Review was timely because he should have been allotted three additional days for mailing and that the ALJ erred in denying his Motion for Reconsideration. The Court of Appeals rejected the claimant’s arguments.  The court noted that while no workers’ compensation rule of procedure or provision of the Act expressly prohibited incorporation of the civil procedure’s 3-day mailing rule, the appellate timelines set forth in the Act explicitly account for mailing time by calculating the time periods from the date of mailing of the order sought to be reviewed.  The court also rejected the claimant’s contention that ALJ erred in denying his Motion for Reconsideration, holding nothing in the Act nor rules provide an exception for late filing due to excusable neglect, nor do they provide for extensions of time for filing for “good cause shown.”  The court noted that discretion does not overcome the jurisdictional time limits set forth in the statute.  Interestingly, there was one dissenting judge.  Judge Russell agreed the Petition was untimely but did not agree the ALJ lacked authority to consider the claimant’s motion for reconsideration “for good cause shown.” The Speier case is an important reminder that the Workers’ Compensation Act and Rules of Procedure contain numerous jurisdictional deadlines, e.g., for filing admissions, requesting Division IMEs, denying requests for prior authorization, etc.  If the deadline is missed, no matter how creative the argument, there is little chance of rectifying the mistake.  Therefore, the timely exchange of information between adjuster and attorney is critical.

Text Box:    A Medical Report in Hand is a    Medical Report to Exchange By Erica A. Weber

Text Box: WHOOPS… AVOID UNINTENDED CONSEQUENCES THROUGH TIMELY EXCHANGE OF INFORMATION

Text Box: WELCOME KATHERINE! Please join Clifton, Mueller & Bovarnick in welcoming their newest associate, Katherine Holom.  Katherine originally hails from Burlington, Wisconsin.  As an undergraduate, she attended the University of Wisconsin at Lacrosse, Wisconsin.  However, colorful Colorado beckoned and Katherine left her home state to attend the University of Denver School of Law.  While attending law school, Katherine served as an intern with the Office of Administrative Courts, assisting the Administrative Law Judges in drafting Orders.  Katherine’s hobbies include broomball and mountain biking.  She says the weather in Colorado is far preferable to Wisconsin—not a single complaint about all the snow this year!  

Text Box: Richard A. Bovarnick In the claim of Jesus Rodriguez v. Shamrock Foods and Liberty Mutual Insurance Co., Rich Bovarnick persuaded the Division Independent Medical Examiner, Dr. Ranee Shenoi, to reverse her opinion that the claimant was not at MMI.  On questioning by Rich, Dr. Shenoi also agreed with the authorized provider’s opinion that the claimant sustained no permanent physical impairment as a result of his low back strain, even though he continued to complain of symptoms at the DIME appointment. In Angelo v. Service Experts, Inc. and ACE American Insurance, Respondents convinced Administrative Law Judge Bruce Friend that Dr. Joseph Fillmore’s Division IME was partially incorrect, based on the DIME doctor’s improper application of the AMA Guides in awarding the claimant additional permanent impairment for vascular loss as a result of an ulnar nerve injury. Royce W. Mueller In Jennifer Carr v. Sysco Food Services of Denver and New Hampshire Insurance Co., Dr. Annu Ramaswamy performed a Division IME at the request of the claimant.  He assigned fourteen percent whole person permanent physical impairment, combining seven percent impairment for an alleged cervical spine injury and seven percent impairment for an alleged lumbar injury.  In addition, Dr. Ramaswamy recommended extensive medical treatment to maintain the claimant’s condition at MMI.  Respondents applied for hearing to overcome the Division IME.  Royce Mueller deposed Dr. Ramaswamy and showed the doctor video surveillance of the claimant.  Based on Royce’s questioning and the video of the claimant, Dr. Ramaswamy changed his opinion.  He testified, based on the claimant’s unrestricted activities documented by surveillance, she had no permanent physical impairment from either injury.  Moreover, Dr. Ramaswamy testified the claimant did not require any medical treatment post-MMI. Holly M. Barrett In the claim cited J. Armando Villalobos v. Waste Connections, Inc. and ACE American Insurance Co., Administrative Law Judge Edwin L. Felter, Jr., agreed with Holly Barrett that the claimant’s work with employer did not cause or accelerate the claimant’s pre-existing arthritic condition, but  merely temporarily aggravated it.  ALJ Felter found the claimant’s last day of work was June 12, 2007.  However, his pre-existing condition returned to baseline on June 19, 2007.  Therefore, the claimant was entitled to TTD benefits for only a seven-day period.  In addition, ALJ Felter found Respondents proved the claimant willfully misled the employer regarding his physical ability to perform the job by failing to disclose his preexisting, nonoccupational arthritis.  The claimant was subsequently injured on the job as a result of his preexisting nonoccupational arthritis, the condition about which he misled the employer.  Therefore, the ALJ found his compensation should be reduced by fifty percent pursuant to C.R.S. § 8-42-112(1)(d).

Text Box: · It’s not whether you win or lose, it’s how you place the blame. · You are not drunk if you can lie on the floor without holding on. · We have enough youth; how about a fountain of smart? · When blondes have more fun, do they know it? · A fool and his money can throw one hell of a party. · We are born naked, wet and hungry.  Then things get worse. · He who hesitates is probably right. · Artificial intelligence is no match for natural stupidity.

Text Box: Wisdom Of Our Time

Text Box: From the “Dumb Criminals” Hall of Shame Arizona: A company called "Guns For Hire" stages gunfights for Western movies, etc.  One day, they received a call from a 47-year- old woman, who wanted to have her husband killed.  She got 4-1/2 years in jail. Texas: A man convicted of robbery worked out a deal to pay $9600 in damages rather than serve a prison sentence.  For payment, he provided the court a check -- a forged check.  He got 10 years.  

Text Box: Note: Summaries and articles should not be relied upon as authority for a particular case.  Consult your attorney for advice on the application of all the law to the specific facts of your case or legal problem. Text Box:           FOUNDED 1991   is published monthly by the law firm of   Clifton, Mueller & Bovarnick, P.C. Attorneys at Law Suite 500 789 Sherman Street Denver, CO 80203 Telephone (303) 988-7692 Facsimile  (303) 988-7724   Grand Junction Office Suite 204 200 Grand Avenue Grand Junction, CO 81501 Telephone (970) 255-8852 Facsimile (970) 255-8905    Holly M. Barrett              Cheryl A. Martin  Richard A. Bovarnick       M. Frances McCracken  James R. Clifton               Royce W. Mueller  Katherine M. Holom        Erica A. Weber   © 2008 Clifton, Mueller & Bovarnick, P.C. All rights reserved.  Printed in USA.