A new law on the books introduced in the Senate on Dec. 18, 2007 and signed by the President on December 29, 2007 is going to have significant impact on how the workers' compensation system operates in the future concerning Medicare Secondary Payer (MSP) issues.

As the new political and legislative year unfolds, stakeholders are keeping their eye on the prize, medical benefits, in the workers' compensation arena. Recent court decisions continue to emphasize the major significance of medical care and continue to question the ability of the presently crafted system to deliver medical benefits in an efficient and effective manner.

Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. The recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement.

CLEARING THE WORKERS' COMPENSATION BENEFIT HIGHWAY OF MEDICAL EXPENSE LAND MINES 
Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. The recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement. By John H. Geaney and Jon L. Gelman

RICO CLAIMS RESULTS IN AWARD OF $2.2 MILLION AGAINST INJURED WORKERS
Federal RICO action arising from WC claims results in $2,264,690. Award Against Workers
"The Complaint alleges that the defendants committed violations of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. 1962, violations of the New Jersey State Racketeer Influenced and Corrupt Organization Act, N.J.S.A. 2C:41-2, violations of N.J.S.A. 34:15-57.4(b) (workers’ compensation fraud), common law fraud and conspiracy in connection with the filing and prosecution of fraudulent workers’ compensation petitions against Plaintiff...'
Bath Unlimited, Inc. v Ginarte O'Dwyer, et al., Case 2:04-cv-03919-SRC-RJH Filed 3.14.07 Civ Ac No 04-3919 (SRC) (USDCT NJ 2007)

NEW MEDICARE RECOVERY PROCEEDURE – Medicare Secondary Payer. The Centers for Medicare & Medicaid Services (CMS) is consolidating all of the functions and workloads related to Medicare Secondary Payer (MSP) post-payment recoveries into one MSP recovery contract. The contract for the new national MSP Recovery Contractor (MSPRC) will be implemented on October 2, 2006. 

PUTTING "FAULT" BACK INTO WORKERS' COMPENSATION. A bill has been introduced into the NJ Legislature in an attempt to legislatively reverse the recent NJ Supreme Court ruling in Tlumac v. High Bridge Stone which reaffirmed the long standing rule that intoxication must be the "sole cause" of an accident in order to deprive an employee of workers' compensation benefits. The proposed legislation, S2166, amends the workers' compensation law to provide that it in employee was intoxicated when the injury or death occurred, it is presumed that the injury or death was caused by the intoxication and the employee will be barred from receiving workers' compensation.

 Questions and Answers for Part D and Workers’ Compensation Medicare Set-aside Arrangements. This memorandum supersedes the Part D and Workers’ Compensation Medicare Set-aside Arrangements (WCMSA) memorandum that was published on December 30, 2005. It includes policy regarding the inclusion of future prescription drug treatment costs/expenses in WCMSAs. 

The proposed legislation is both conceptually flawed and substantively contrary to legislative intent of the workers’ compensation system established throughout the United States. The enactment of this legislation will strip injured workers of benefits that they have been entitled to since 1911.

 NJ GOVERNOR CLOSES WORKERS' COMPENSATION COURTS UNTIL FURTHER NOTICE DUE TO STATE BUDGETARY CRISIS Governor Jon S. Corzine today signed an Exec...

NJ WORKERS' COMPENSATION CLAIMS DECLINE
The NJ DWC reported a 5% decline in the filing of claims in 2005 (37,248) from 2004 (39,212). The statistic also represents a 31% decline from 1992 (54,164). This is consistent with the 25% decline in the number of indemnity claims paid in NJ from from 1992 to 2002 as reported by NJ CRIB. NJ Medical costs have soared 108% during the same period of time while indemnity has risen only 48%..

 CMS RASIES THRESHOLD to $25,000 FOR REVIEW CMS' April 25, 2006 Memorandum regarding WCMSAs and Revision of the Low Dollar Threshold for Medicar...

TAINTED TISSUE AND BONES USED IN TRANSPLANTS 

  A 4.1 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2005

 While each State has its own approach to workers' compensation and personal injury claims, one common denominator is the role of the newly named Centers for Medical and Medicare Services (CMS), formally known as the Health Care Financing Administration (HCFA), and in particular its Medicare Coordination of Benefits (COB) section. 

In an effort to speed the process and obtain quicker review of proposed Workers' Compensation Medicare Set Aside Agreements (WCMSAA), CMS has published a sample 29 page sample submission.

FRAGRANCE AND FLAVOR INDUSTRY HIT WITH $15 MILLION VERDICT Jury Awards $15 Million in Making of Popcorn -This self regulated industry becomes prime target.
A jury on Friday awarded a former popcorn-plant worker $15 million after finding that his exposure to butter-flavoring fumes led to his severe respiratory problems.

NJ: WC JUDGES HAVE DISCRETION TO RULE ON VALIDITY OF A TDB LIEN. In a complex decision involving causal relationship, apportionment of liability and reimbursement of a TDB lien that Appellate Division responded to a statement made by the trial Judge, "...I am no longer a Judge, I am a statutory collection agency for the Labor Department," by reversing his decision and remanding the matter for hearing.

On July 11, 2005, CMS published a new set of Questions and Answers concerning the Medicare Secondary Payer Act (MSP). In the 7 page document CMS indicated that there was no substantive dollar or "safe harbor" threshold for compliance with the federal mandate which requires review of all potential settlements in workers' compensation cases. 

CMS TO ISSUE NEW MEDICARE SECONDARY PAYER GUIDANCE. Under mounting pressure from many organized groups, CMS (The Center for Medicaid and Medicare Services) has indicated that it will shortly release a new set of "Questions and Answers" in order to, yet again, redefine its procedures.