The Culture of Workers Compensation Needs to Change

Workers' Compensation has become a "scapegoat" for a failing American economy. As David J. DePaolo points out in his recent blog, industry has raised the banner of reform in an effort to save dollars rather than to save workers' and their lives.

The financial reports this week from the business rating agencies reflect a deepening crisis of the economic integrity of the entire workers' compensation system nationally. The financial downturn has resulted in an estimated 11% predicted falloff in the collection of premiums. Workers' Compensation should not be turned into a great Ponzi scheme where it cannot meet its obligations and collapses.

Meanwhile as the system fails to be funded, medical delivery expenses and pharmaceutical expenditures soar with the advent of  more individualized medical treatment protocols based on genetic targets as better science becomes available. Likewise, the withdrawal of medical treatment under the claim of saving dollars has de-railed the system even further. NCCI reports that workers' compensation is on drugs. Pain medical expenditures have soared as the program fails to provide treatment necessary to cure conditions. Workers have become expendable as cheap and unskilled labor is now plentiful  around the world.

Safety is considered an unnecessary expense as evidenced by the homebuilders, who decry OSHA safety regulations. Workers' compensation numbers have become a statistic, reporting the failure of safety in the workplace rather than a factor in protecting workers and saving lives.

The social movement, "Occupy Wall Street," mirrors the 99% who labored to build American. They are outraged.

The century old experiment of workers' compensation should not be a culture based upon dollars alone. Americans are creative and industrious. The country can have both, safe jobs and a robust economy. The workers' compensation system's culture must change if the century old  promised agreement between Labor and Industry is to survive.

Related articles

• Occupy Wall Street And The Future Of Workers Compensation (workers-compensation.blogspot.com)
• The Top 10 Drugs Prescribed For Workers Compensation Claims (workers-compensation.blogspot.com)
• Who Is Paying the Premiums for Workers Compensation Anyway (workers-compensation.blogspot.com)

Scientific Evidence and The Court

Last week the Third Edition of The Reference Manual on Scientific Evidence (2011) was published by The National Research Council and The Federal Judicial Center.

"The Reference Manual on Scientific Evidence, Third Edition, assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used.

"First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.

"The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys.

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Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal.

Florida, Oxycodone Trafficking, Workers Compensation and Blame

The announcement by the US Attorney in Florida of the indictment today of 24 individuals for trafficking Oyxcodone puts a cloud over the claims that the workers compensation system is to blame. With the alleged bad apples caught, the announcement should refocus concern not on the work comp system, but rather on those outsiders who attempt to prey on it for personal gain. 

If anything, the system needs more safeguards to protect both the injured workers as well as the taxpayers. Pending legislation in Florida that restricts prescribed medications in workers' compensation claims only emasculates the social remedial benefit program further forcing the disabled to seek help outside the system. Why blame the victims and punish them.

"Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, Mark R. Trouville, Special Agent in Charge, Drug Enforcement Administration (DEA), Christopher B. Dennis, Special Agent in Charge, Health and Human Services, Office of Inspector General (HHS-OIG), José A. Gonzalez, IRS Special Agent in Charge, Director James K. Loftus, Miami-Dade Police Department, Al Lamberti, Sheriff, Broward Sheriff’s Office, and H. Frank Farmer, M.D., State Surgeon General, Florida Department of Health (DOH), announced the unsealing of a federal indictment charging twenty four defendants for their participation in, among other things, conspiracy to distribute oxycodone and oxymorphone, and conspiracy to defraud Medicare. Twenty-one of the defendants, including a doctor, a pharmacist and two pain clinic operators are currently in custody after a multi-agency takedown was executed early this morning. Three defendants, Hattie Mae Green, Eliezer Salgado and Ronald Regains, remain at large.

Researchers from the Centers for Disease Control and Prevention report that Schedule II prescription painkillers, like oxycodone, today cause more drug overdose deaths than cocaine and heroin combined. Oxycodone and other Schedule II drugs have a high potential for abuse and can be crushed and snorted, or dissolved and injected, to get an immediate high. This abuse can lead to addiction, overdose, and sometimes death.

The nine-count indictment, filed on September 30, 2011 and unsealed today, charges all defendants with conspiracy to possess with intent to distribute controlled substances, namely oxycodone and oxymorphone (Count 1), and conspiracy to commit health care fraud (Count 9). Several of the defendants also face substantive charges of possession with intent to distribute controlled substances (Counts 2-6, 8), and attempted possession of controlled substances (Count 7).

Charged in the indictment are Aiman Izzedin Aryan, 40, of Pinecrest, Emerson Carmona, 40, of Miami,Frank J. Ballesteros, M.D., 57, of Miami, Gerardo Gomez, 38, of Miami, Juan De Dios Gomez, 40, of Miami, Danay C. Manso, 22, of Miami, Danilo Falcon, 38 of Miami, Eliezer Salgado, 29, of Hialeah,Francisco Hernandez, 57, of Miami, Leroy Paige, 49, of Madison, Alyssa Lyn Paige, 32, of Madison,Cynthia Suzette Adderley, 53, of Ft. Pierce, Victor D. Alexander, 50, of Ft. Lauderdale, Aaron Lamar Allen, 44, of Ft. Lauderdale, Henry Louis Conley, Jr., 53, of Miami, Hattie Mae Green, 53, of Miami,Petronella Smith Howard, 52, of Ft. Pierce, Eric Fyke Miller, 42, of Ft. Lauderdale, Annie Mims Simmons, 72, of Miami, Bobbie Lee Anderson, 58, of Gifford, Denise Darcelle Dardy, 48, of Miami, Margaret Marie Elliott, 54, of Ft. Pierce, Billy Joe McCoy, 53,of Ft. Pierce, and Ronald Regains, 56, of Ft. Lauderdale.

U.S. Attorney Wifredo Ferrer stated, “According to recent estimates, Florida prescribes ten times more oxycodone pills than all other states combined. Each day, individuals die from prescription drug overdoses. To stop this drug epidemic, we have previously charged clinic owners, operators, and doctors who deal drugs while hiding behind a medical license. Today, we have focused our efforts on those pharmacies who are churning out pills that are fraudulently prescribed at area pain clinics. We will continue to tackle South Florida’s pill mill epidemic from all angles and at all levels to eradicate these drug dealing organizations.”

DEA Special Agent in Charge Mark R. Trouville said, “The Drug Enforcement Administration continues its relentless attack on those who supply the prescription drug epidemic in our country, state, and local communities. With today’s arrests, twenty four people will no longer add to this drug problem.”

“Today’s multi-agency operation makes clear that drug trafficking and health care fraud make for a vile combination that simply cannot be tolerated,” said Christopher B. Dennis, Special Agent in Charge for the HHS-OIG region based in Miami. “Schemes to steal from taxpayers to pay for highly addictive, highly profitable street drugs , as the government alleges in this case, will trigger investigation and prosecution.”

“The Internal Revenue Service will continue to provide its financial investigative expertise to further the prosecution of criminals, especially those involved in complex financial schemes,” said IRS Special Agent in Charge Jose Gonzalez.

“The trafficking of oxycodone and oxymorphone has seeped into our community and extends beyond the borders of Miami-Dade County. We stand committed to working with our state and federal partners in the ongoing effort to apprehend these drug dealers who are destroying lives with their criminal behavior,” said Miami-Dade Police Department Director James K. Loftus.

“Through operations like this one, prescription drug peddlers are getting the message that pill pushing is no longer tolerated in Florida,” Broward Sheriff Al Lamberti said. “Federal and local enforcement efforts have turned the tide but we need to keep up the good work.”

“The Florida Department of Health has been diligently working with our law enforcement partners to identify unscrupulous practitioners who are inappropriately prescribing controlled substances,” stated Florida Surgeon General Dr. Frank Farmer. “When DOH learns that a practitioner is not following the law, we suspend that practitioners license. We will aggressively continue to fight the prescription drug problem in Florida.”

According to the indictment, from as early as November 2007 September 2011, defendants Gerardo Gomez, Juan De Dios Gomez, and Danay C. Manso operated and utilized pain clinics in Miami-Dade and Broward Counties. These pain clinics housed physicians, including defendant Frank J. Ballesteros, M.D., who would fraudulently prescribe oxycodone and oxymorphone for co-conspirator beneficiaries of Medicare and other prescription drug insurance plans. The beneficiaries would then present the fraudulent prescriptions obtained from the Gomezes’ pain clinics at complicit pharmacies operated by defendants Aiman Izzedin Aryan and Emerson Carmona. Once the prescriptions were filled, Aryan and Carmona would bill Medicare, and other insurers, for the cost of the prescriptions, knowing that the drugs were medically unnecessary and were being re-sold by the beneficiaries.

Defendants Leroy Paige, Alyssa Lyn Paige, Cynthia Suzette Adderley, Victor D. Alexander, Aaron Lamar Allen, Henry Louis Conley, Jr., Hattie Mae Green, Petronella Smith Howard, Eric Fyke Miller, and Annie Mims Simmons facilitated the drug-trafficking and health care fraud conspiracies by recruiting the corrupt health insurance beneficiaries to visit the Gomezes’ pain clinics and Dr. Ballesteros. Often, these recruiter defendants further participated by transporting the beneficiaries to the pain clinics to obtain the prescriptions and then to the pharmacies where they were filled. At the pharmacies, these defendants would receive and take control of the drugs from the beneficiaries. Once these defendants had the drugs, they would distribute them to Gerardo Gomez, Juan De Dios Gomez, Danilo Falcon, and Eliezer Salgado.

Defendants Bobbie Lee Anderson, Denise Darcelle Dardy, Margaret Marie Elliott, Billy Joe McCoy, and Ronald Regains were beneficiaries who posed as patients to obtain the fraudulent prescriptions for oxycodone and oxymorphone, which they then sold.

The indictment contains a forfeiture allegation seeking approximately $40,000,000 which is listed as the amount of proceeds derived by the defendants from the drug trafficking offenses charged in Counts 1 to 8 of the indictment.

If convicted, the defendants face a statutory maximum penalty of 20 years in prison on Counts 1 to 8, and a statutory maximum penalty of 10 years in prison on Count 9.

Today’s case, named Operation Gotham, is the result of the ongoing efforts by the Organized Crime Drug Enforcement Task Force (OCDETF), a partnership between federal, state and local law enforcement agencies. The OCDETF mission is to identify, investigate, and prosecute high level members of drug trafficking enterprises, bringing together the combined expertise and unique abilities of federal, state and local law enforcement.

Mr. Ferrer commended the DEA, the HHS-OIG, the IRS, the Miami-Dade Police Department, the Broward Sheriff’s Office, and the Florida Department of Health, for their work on Operation Gotham. This case is being prosecuted by Assistant U.S. Attorney Dwayne E. Williams.

An indictment is only an accusation and the defendants are presumed innocent until proven guilty.

Attachments:
Indictment (PDF)
A copy of this press release may be found on the website of the United States Attorney's Office for the Southern District of Florida at http://www.usdoj.gov/usao/fls. Related court documents and information may be found on the website of the District Court for the Southern District of Florida athttp://www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov.

Related articles

• Doctor, drug dealer, and pharmacist charged in Oxycodone scheme (philly.com)
• The Top 10 Drugs Prescribed For Workers Compensation Claims (workers-compensation.blogspot.com)
• Rogue pharmacies banking on oxycodone (cbsnews.com)
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Truckers Are Often Entitled to Benefits From Multiple States

Guest blog by Rod Rehm

Truckers are frequently entitled to benefits from multiple states for an injury.

Each state sets rules for applying its workers’ compensation laws. Virtually all states cover accidents that happen in that state.

Many states allow benefits if the employer has it primary location in that state. Others cover claims if the employer is doing business it the state. There are different rules in each state and you should talk to experience workers compensation lawyer to learn what laws cover your injury. However, you do not have to make a choice.

The law established by the United State Supreme court in Thomas v. Washington Gas Light Co. is that compensation does not involve a “choice of law” question. The issue is one of coverage. Does the injury come within the coverage of one or more state? If so, each of the states can apply their law and award benefits even if a claim is being pursued elsewhere at the same time. Unless the state law says it will not provide coverage if another state does, you have multiple forums and can file in all of them.

The employer is given credit for payments made and the injured worker can collect up to the maximum allowed by all the laws that cover the claim. This is very important because benefits vary greatly from state to state.

A trucker or any traveling working person, such as a tradesman, needs to consult with experienced lawyers to learn what states provide coverage and not take the coverage offered by the employer unless they are sure that it is the best option.

In the Midwest, Iowa generally has the most generous benefits however you can not pick the doctors who treat you under Iowa law. Nebraska law allows for full benefits while going through vocational rehabilitation which can last as long a four years. Missouri has no vocational rehabilitation and Iowa has very limited benefits for vocational rehabilitation. A trucker or any traveling working person, such as a tradesman, needs to consult with experienced lawyers to learn what states provide coverage and not take the coverage offered by the employer unless they are sure that it is the best option.

Rod Rehm is the senior member of Rehm, Bennett and Moore of Lincoln, Nebraska. He is fromer President and now a Director of the Nebraska Association of Trial Attorneys.  In that capacity he served as representative to the Governors Workers Compensation Task Force. He is a fellow of The College of Workers Compensation Lawyers and a member of the American Association for Justice and the Workplace Law and Advocacy Group. He is a regular contributor to Workers Compensation Watch, a nationally recognized blog.

Chavez: Court Decision on Subrogation Rights

In the Chavez decision the Colorado Court of Appeals ruled against Pinnacol's efforts to obtain or share in a settlement made between the injured worker and a third party. Subrogation can give the workers comp insurer rights to obtain reimbursement from some other responsible party. Here the claimant was injured in an auto accident but received workers comp benefits. He then sought to pursue a tort claim on the accident against others. Pinnacol joined that case because it can assert its right to reimbursement should there be a big recovery. However in this case the employee settled what was called his non-economic damages such as pain and suffering. The settlement was set up not to prejudice Pinnacol's right to proceed but Pinnacol felt it was entitled to approve the settlement or at least that it was entitled to some portion of that settlement. The court ruled that the settlement was reasonable and did not affect Pinnacol's rights. As set up by the language in the settlement Pinnacol's ability to pursue its claims was not affected by all this so it was not entitled to any of the settlement. Here the non-economic damages that were settled involve matters never paid through workers comp by Pinnacol. Pain and suffering for example is not a workers comp benefit but Pinnacol felt it was wronged anyway. It lost in the original case and then in this appeal.

Dramatic Downturn In Work Comp Underwriting Will Continue Predicts AM Best

Due to the stressed housing market and ongoing economic downturn, 2010 was another difficult year for the title industry, according to an A.M. Best Special Report featured in this week's BestWeek U.S./Canada.

Despite the historically low mortgage interest-rate environment, revenues were pressured from the high unemployment rate and tightened credit standards. As such, operating results deteriorated and total industry written premiums declined slightly, year over year, A.M. Best said. Nevertheless, the title insurance industry managed to report an overall approximate 7% increase in surplus, driven mainly by the equity market recovery in 2010.

Also in BestWeek U.S./Canada, it's unlikely workers' compensation writers will see that line of business turn around anytime soon, despite large-scale workers' compensation reform bills enacted in several states this year, said Edward Keane, a senior financial analyst at A.M. Best.

Keane told BestWeek the deterioration that workers' compensation insurance has seen during the past two years will continue at least until mid-2012, unless the economy makes a dramatic improvement before then.

"I think the way things are going, results are going to get worse before they get better," Keane said, adding that for 2011, A.M. Best is projecting a 121.5 combined ratio. Last year, the combined ratio for the line was 118.1.

And with the election for Louisiana insurance commissioner coming up on Oct. 22, Jim Donelon, the Republican incumbent, and Donald Hodge, a Democrat, spoke to BestWeek about their opposing views.

Donelon has been spending aggressively to increase his name recognition and has continued his effort to court new insurers to the state. His opponent has gone on the attack, targeting Donelon for accepting campaign contributions from insurance companies doing business in the state. In fact, if Hodge had his way, he would be the last elected insurance commissioner in Louisiana.

Related articles

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