Undocumented Workers Entitled to Workers’ Compensation Benefits
by Alissa C. Atkins, Esq.
Two recent decisions at Florida’s appellate level confirmed that undocumented workers were entitled to the equivalent of temporary total disability payments. In the case of Rene Stone Work Corp. v. Gonzalez, the employer/insurer attempted to deny indemnity payments to a claimant who was involved in an injury that resulted in a partial left leg amputation. The employer/insurer contended the claimant’s average weekly wage should be zero because he did not report all of his taxable income in the year 2008, thereby violating Florida law. The First District Court of Appeals ruled on January 25, 2010 that the standard the employer/insurer sought would hold the claimant to a level of accuracy in filing his taxes that Florida did not require. Mr. Gonzalez had filed some tax forms with the help of a CPA. He did not report all of his income from every employer as required on Federal taxes, but did report his income earned with the employer where he was injured. The Court found this to be sufficient.
Based on its decision in this case, the court in JBD Bros. v. Miranda approved the claimant’s request for indemnity benefits despite the fact that he also did not file complete information with the IRS.
Courts in Georgia have refused to penalize employees for failing to include all of their wages in IRS documentation. In 1992, the Georgia Court of Appeals ruled that the average weekly wage of a waiter could be increased by tips, even if the waiter did not properly report the tips as income on his taxes. Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112. Thus, most courts appear to be taking a liberal approach when considering claims filed for weekly benefits.
If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com
February 19, 2010
February 18, 2010
Update on Medicare Reporting Requirements - New Deadline
Update on Medicare Reporting Requirements - New Deadline
by: Chuck DuBose, Esq.
The Centers for Medicare & Medicaid (CMS) continues changing the deadlines involved with the new Section 111 Mandatory Medicare Reporting Requirements. CMS just announced it has delayed implementation of the Medicare reporting requirements until January 1, 2011 (rather than April 1, 2010 as previously planned). This delay is certainly welcome news and follows a request by the American Insurance Association (AIA), the Self-Insurance Trade Institute of America, Inc. and various representatives of the insurance industry who claimed that more time was needed. CMS also announced that all RREs (Responsible Reporting Entities) should be registered now and should either be in the file testing state of preparing for it. According to CMS, the file testing stage should be completed by December 31, 2010.
Implementing the reporting deadlines as CMS had previoulsy planned (on April 1, 2010) would undoubtedly have caused significant hardship and possible substantial fines to insurers and self-insured companies, especially in light of the fact that CMS has not yet provided the final reporting parameters to meet the requirements. We will continue our involvement in this important area and keep you updated with any further changes.
If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com
by: Chuck DuBose, Esq.
The Centers for Medicare & Medicaid (CMS) continues changing the deadlines involved with the new Section 111 Mandatory Medicare Reporting Requirements. CMS just announced it has delayed implementation of the Medicare reporting requirements until January 1, 2011 (rather than April 1, 2010 as previously planned). This delay is certainly welcome news and follows a request by the American Insurance Association (AIA), the Self-Insurance Trade Institute of America, Inc. and various representatives of the insurance industry who claimed that more time was needed. CMS also announced that all RREs (Responsible Reporting Entities) should be registered now and should either be in the file testing state of preparing for it. According to CMS, the file testing stage should be completed by December 31, 2010.
Implementing the reporting deadlines as CMS had previoulsy planned (on April 1, 2010) would undoubtedly have caused significant hardship and possible substantial fines to insurers and self-insured companies, especially in light of the fact that CMS has not yet provided the final reporting parameters to meet the requirements. We will continue our involvement in this important area and keep you updated with any further changes.
If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com
February 16, 2010
New Prosthetics technology may help catastrophically injured workers return to the workforce
New Prosthetics technology may help catastrophically injured workers return to the workforce
by Lindy Z. Kerr, Esq.
For many employees who have sustained a work injury resulting in amputation, the loss of a limb permanently disables them from performing the only type of jobs they are trained to do. Yet, recent technological advances in medicine may mean that workers who are catastrophically injured because of an amputation will be able to return to work, even in manual labor positions.
Earlier this year a naval officer who lost all five fingers on his left hand was the one of 50 people in the world and the first person in the Southeast to receive a new technology called “Prodigits.” “Prodigits” uses a technology called myoelectrics, which sends signals from muscles to a computer that sends the signal impulse to the prosthetic extremity. The technology allows the prosthetic fingers to move naturally.
The technology is still very new, and still expensive. However, it is foreseeable that in the near future technological advances in prosthetics will allow otherwise catastrophically injured workers to regain function and return to work at a cost that is more manageable for employers and insurers.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
by Lindy Z. Kerr, Esq.
For many employees who have sustained a work injury resulting in amputation, the loss of a limb permanently disables them from performing the only type of jobs they are trained to do. Yet, recent technological advances in medicine may mean that workers who are catastrophically injured because of an amputation will be able to return to work, even in manual labor positions.
Earlier this year a naval officer who lost all five fingers on his left hand was the one of 50 people in the world and the first person in the Southeast to receive a new technology called “Prodigits.” “Prodigits” uses a technology called myoelectrics, which sends signals from muscles to a computer that sends the signal impulse to the prosthetic extremity. The technology allows the prosthetic fingers to move naturally.
The technology is still very new, and still expensive. However, it is foreseeable that in the near future technological advances in prosthetics will allow otherwise catastrophically injured workers to regain function and return to work at a cost that is more manageable for employers and insurers.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Compensability of injuries and deaths caused by violence in the workplace
Compensability of injuries and deaths caused by violence in the workplace
by Lindy Z. Kerr, Esq.
In the aftermath of the recent tragedy in Atlanta committed by former Penske employee Jessie James Warren it is helpful to examine how Georgia treats attacks made in the workplace. In Georgia, an injury or death caused by workplace violence “arises out of and in the course of employment” if the incident is employment-related or even if it is considered a "neutral" risk. The injury or death will generally not be compensable if it is the result of a purely personal attack. For example, in the case of an employee who was shot to death at work by the jealous husband of a former co-worker the Court of Appeals ruled the claim was not a compensable one.
When the injured worker is not the aggressor to an altercation and the incident occurs at work it will generally be considered compensable. Employment-related risks are also found where the nature of the job makes it more likely than not the employee would be a victim of physical violence. For example, in one 1999 case the Court of Appeals found than an assault on a pizza delivery driver was compensable. The Court found his job required that he travel along at all hours in a marked car and come in contact with all sorts of people in an area that was considered "high crime."
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
by Lindy Z. Kerr, Esq.
In the aftermath of the recent tragedy in Atlanta committed by former Penske employee Jessie James Warren it is helpful to examine how Georgia treats attacks made in the workplace. In Georgia, an injury or death caused by workplace violence “arises out of and in the course of employment” if the incident is employment-related or even if it is considered a "neutral" risk. The injury or death will generally not be compensable if it is the result of a purely personal attack. For example, in the case of an employee who was shot to death at work by the jealous husband of a former co-worker the Court of Appeals ruled the claim was not a compensable one.
When the injured worker is not the aggressor to an altercation and the incident occurs at work it will generally be considered compensable. Employment-related risks are also found where the nature of the job makes it more likely than not the employee would be a victim of physical violence. For example, in one 1999 case the Court of Appeals found than an assault on a pizza delivery driver was compensable. The Court found his job required that he travel along at all hours in a marked car and come in contact with all sorts of people in an area that was considered "high crime."
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements
U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements
by Lindy Z. Kerr, Esq.
In December the United States Government used the Medicare Secondary Payer Statute (MSP) as a basis for filing a complaint against both sides of settlement agreement reached in a class action liability claim in 2003. Medicare is seeking to recover conditional payments of medical expenses made on behalf of Medicare-eligible individuals who were part of the settlement. The lawsuit, filed as U.S. v. Stricker, is also seeking a ruling that would require the parties to pay Medicare before any other future payments in the settlement are made.
Several years may pass before there is a final decision in the claim. Nevertheless, the case has immediate implications in the arena of workers’ compensation settlements. The easiest way to determine whether conditional payments have been made is to have a lien verification performed. A lien verification is often one of the services performed by MSA projection companies. If the verification uncovers payments made by Medicare for treatment of the work -related injury then the employer/insurer will need to be prepared to reimburse Medicare for these costs.
The question then becomes, when is it appropriate to do a lien verification since not every claim reaching settlement requires one? Conditional payments only become an issue when the claimant in the workers’ compensation claim is a Medicare beneficiary. Otherwise, Medicare would not have paid for medical expenses that should or could otherwise be covered under workers’ compensation. Therefore, it is important to verify early on whether the claimant is a Medicare beneficiary, prior to filing any settlement agreement with the State Board of Workers’ Compensation. If the claimant is such a beneficiary a lien verification is recommended.
The most prudent course of action is to obtain a lien verification for any settlement involving a Medicare beneficiary, prior to finalizing the terms of settlement or filing any documents. The verification process may require some additional time and resources, but resolving this issue upfront will help avoid uncertainty and allow all parties to move forward without risk of the settlement later being challenged.
by Lindy Z. Kerr, Esq.
In December the United States Government used the Medicare Secondary Payer Statute (MSP) as a basis for filing a complaint against both sides of settlement agreement reached in a class action liability claim in 2003. Medicare is seeking to recover conditional payments of medical expenses made on behalf of Medicare-eligible individuals who were part of the settlement. The lawsuit, filed as U.S. v. Stricker, is also seeking a ruling that would require the parties to pay Medicare before any other future payments in the settlement are made.
Several years may pass before there is a final decision in the claim. Nevertheless, the case has immediate implications in the arena of workers’ compensation settlements. The easiest way to determine whether conditional payments have been made is to have a lien verification performed. A lien verification is often one of the services performed by MSA projection companies. If the verification uncovers payments made by Medicare for treatment of the work -related injury then the employer/insurer will need to be prepared to reimburse Medicare for these costs.
The question then becomes, when is it appropriate to do a lien verification since not every claim reaching settlement requires one? Conditional payments only become an issue when the claimant in the workers’ compensation claim is a Medicare beneficiary. Otherwise, Medicare would not have paid for medical expenses that should or could otherwise be covered under workers’ compensation. Therefore, it is important to verify early on whether the claimant is a Medicare beneficiary, prior to filing any settlement agreement with the State Board of Workers’ Compensation. If the claimant is such a beneficiary a lien verification is recommended.
The most prudent course of action is to obtain a lien verification for any settlement involving a Medicare beneficiary, prior to finalizing the terms of settlement or filing any documents. The verification process may require some additional time and resources, but resolving this issue upfront will help avoid uncertainty and allow all parties to move forward without risk of the settlement later being challenged.
January 14, 2010
U.S. v. Stricker: Enforcement of the Medicare Secondary Payer Act ?
U.S. v. STRICKER: ENFORCEMENT OF THE MEDICARE SECONDARY PAYER ACT?
by Adam L. Katz, Esq.
On December 1, 2009 the United States filed suit against parties and their attorneys alleging that Medicare was not reimbursed from a $300 million class action settlement. In U.S. v. Stricker, et. al. the United States alleges violations of the Medicare Secondary Payer Statute (MSP). The MSP authorizes Medicare to seek reimbursement for conditional payments made relating to a third party claim, such as a liability suit or workers’ compensation claim. The U.S. alleges that the parties and their attorneys knew, should have known, or did not ascertain whether the parties receiving settlement payments were Medicare beneficiaries. As a result, the suit alleges that the parties and their attorneys failed to comply with the MSP and are liable for reimbursing Medicare for conditional payments made by CMS. The U.S. is also seeking double damages against several parties.
What lesson can be taken from this? U.S. v. Stricker indicates that Medicare will be more aggressive in pursuing reimbursement for conditional payments, from both the parties and their attorneys. Although Stricker involves a class action liability suit the principles of the case also apply to workers’ compensation claims. Therefore, going forward it will be important for parties and their attorneys in workers’ compensation claims to determine whether Medicare should be reimbursed for conditional payments prior to the disbursement of settlement funds. While developments in the case will bear close attention, Stricker suggests that all parties and attorneys to a claim should be careful to comply with the MSP and take Medicare's interests into account.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
by Adam L. Katz, Esq.
On December 1, 2009 the United States filed suit against parties and their attorneys alleging that Medicare was not reimbursed from a $300 million class action settlement. In U.S. v. Stricker, et. al. the United States alleges violations of the Medicare Secondary Payer Statute (MSP). The MSP authorizes Medicare to seek reimbursement for conditional payments made relating to a third party claim, such as a liability suit or workers’ compensation claim. The U.S. alleges that the parties and their attorneys knew, should have known, or did not ascertain whether the parties receiving settlement payments were Medicare beneficiaries. As a result, the suit alleges that the parties and their attorneys failed to comply with the MSP and are liable for reimbursing Medicare for conditional payments made by CMS. The U.S. is also seeking double damages against several parties.
What lesson can be taken from this? U.S. v. Stricker indicates that Medicare will be more aggressive in pursuing reimbursement for conditional payments, from both the parties and their attorneys. Although Stricker involves a class action liability suit the principles of the case also apply to workers’ compensation claims. Therefore, going forward it will be important for parties and their attorneys in workers’ compensation claims to determine whether Medicare should be reimbursed for conditional payments prior to the disbursement of settlement funds. While developments in the case will bear close attention, Stricker suggests that all parties and attorneys to a claim should be careful to comply with the MSP and take Medicare's interests into account.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
January 13, 2010
Cumulative Trauma Injury Claims
In Georgia a cumulative injury claim is governed by O.C.G.A. 34-9-1. As with a typical, isolated injury type claim, the employee must prove an accident and injury arising out of and in the course of employment for it to be compensable. The problem with cumulative trauma injuries is the "accident" date and time is not easily discernable. Nevertheless, it can still be compensable under Georgia law. Thomas v. Ford Motor Co., 181 S.E.2d 874 (1971).
Where the employee has a cumulative trauma, or gradual injury, the date of accident to be utilized is the date the injury prevents him or her from working. In other words, the date of accident is typically when disability manifests itself. For "medical only" claims that do not result in any disability the date of accident chosen should be the date the injury, or pain requires medical attention.
Georgia courts are also clear that a cumulative trauma "aggravation" to a pre-existing condition is compensable. There does not need to be a specific incident. The gradual wear and tear of a job is enough as long as it is a contributing factor to the employee's disability and/or medical condition. However, once the aggravation from a cumulative trauma injury ends so does the employer/insurer's responsibility. O.C.G.A. 34-9-1; Worthington Indus. v. Sanks, 492 S.E.2d 753 (1997). The line between a pre-existing condition and cumulative trauma aggravation can be blurry, so it is up to the judge as the factfinder to determine this issue.
David W. Willis
David & Rosetti, LLP
(404) 446-4491
david.willis@davidandrosetti.com
www.davidandrosetti.com
Where the employee has a cumulative trauma, or gradual injury, the date of accident to be utilized is the date the injury prevents him or her from working. In other words, the date of accident is typically when disability manifests itself. For "medical only" claims that do not result in any disability the date of accident chosen should be the date the injury, or pain requires medical attention.
Georgia courts are also clear that a cumulative trauma "aggravation" to a pre-existing condition is compensable. There does not need to be a specific incident. The gradual wear and tear of a job is enough as long as it is a contributing factor to the employee's disability and/or medical condition. However, once the aggravation from a cumulative trauma injury ends so does the employer/insurer's responsibility. O.C.G.A. 34-9-1; Worthington Indus. v. Sanks, 492 S.E.2d 753 (1997). The line between a pre-existing condition and cumulative trauma aggravation can be blurry, so it is up to the judge as the factfinder to determine this issue.
David W. Willis
David & Rosetti, LLP
(404) 446-4491
david.willis@davidandrosetti.com
www.davidandrosetti.com
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