End of Summer

Tuesday, September 1, 2009 | 0

By Mullen & Filippi


Some are still enjoying the slightly slower summer pace, for others, summer is already over. For some of our children, the fall term at school recently started. The items we have chosen for this edition of the Mullen & Filippi Bulletin are intended to reflect the mixed feelings of this time of year — the push and pull of wanting to move forward and get busy but not lose the summer pace quite yet.

New CMS Reporting Requirements. As a result of legislation enacted in 2007, the Centers for Medicare and Medicaid Services (CMS) is in the process of implementing new requirements for reporting payments on claims involving Medicare beneficiaries. This summer, CMS has issued several publications on this topic.

On July 13, 2009, CMS issued an Alert stating that benefit payments which, pursuant to applicable state law, are precluded from including payment for medical expenses do not have to be reported. While the language of the Alert is not specific enough to be completely clear, this apparently means that you are not required to report disability indemnity payments to CMS. On July 31, 2009, CMS issued a second Alert providing draft language defining who is a responsible reporting entity (RRE) required to report payments to CMS. While the details of the proposed rules are too extensive to discuss here, the proposed language, generally summarized, establishes two basic principles. First, under most circumstances, the RRE is the entity that funds the payment, even if that payment is subject to reimbursement from another entity. Second, while an RRE may designate an agent to report for it, the responsibility for reporting remains with the RRE.

The CMS Alert is, of course, much more detailed and provides additional information, including some specific examples as to how the rules will apply in specified situations. CMS has also produced a "Reporting Dos and Don'ts" document designed to answer questions which reporting entities might have, and will be holding a series of Town Hall Teleconferences related to reporting requirements. You can obtain copies of the CMS Alerts and other similar documents, as well as information about the teleconferences, from the CMS website, http://www.cms.hhs.gov/MandatoryInsRep. A time line on the website indicates that CMS expects RREs to be registered and reporting claims by January 2010, and issuing summary reports to CMS by April 2010.

Reassuring Decisions. Most judicial decisions either clarify existing rules, allowing us to interpret them in new ways, or establish new rules that we all have to adapt to. But sometimes, the courts make decisions which simply reassure us by reaffirming the rules as we know them. Two such decisions were issued recently.

On Aug. 6, 2009, the Second District Court of Appeal issued a decision in the case Jones v. Sedgwick Claims Management, reaffirming the rule that an injured worker who objects to the way a third-party administrator (TPA) handles the claim must resolve the objection before the Workers' Compensation Appeals Board (WCAB). In this case, the injured worker filed a lawsuit against the TPA claiming that the TPA had acted in bad faith by refusing to allow her to go to her own doctor, denying requested medical treatment, requiring her to take tests, and forcing her to go back to work. Without addressing whether any of her complaints were valid (which seems questionable to us), the court dismissed her lawsuit and held that her civil action was barred by the exclusive remedy rule and she was limited to proceeding before the WCAB. The decision was not certified for publication.

In another case, WorkCompCentral recently reported that the California Supreme Court has refused to grant review of Leverton v. WCAB, effectively affirming a WCJ decision holding that Labor Code section 5406 requires that a claim for death benefits resulting from an industrial injury must be filed within 240 weeks of the date of the injury. In this case, a firefighter who had suffered an industrial cardiac injury died of a heart attack more than 240 weeks after the initial injury, and the death benefit claim was found to be barred. While the result was tragic, the decision effectively affirmed a long established rule.

A New Tool. Finally, we want to let you know about a nifty new tool we have discovered on the WCAB website, called a ZIP code locator.

As everyone who is litigating current claims knows, the WCAB case numbers no longer identify where a claim is filed. The ZIP code locator allows you to enter a zip code into a box on the web page and then gives you the location of the WCAB office which serves that ZIP code. The intent of this tool is to help parties determine where they should file their claims. However, it is also useful in determining where an existing claim has been filed. Workers' compensation claims are generally filed either in the district office closest to where the injury occurred, or where the applicant lives, or where the applicant's attorney has his/her office. Searching by ZIP codes for these locations can help find where the claim was filed by narrowing down the likely locations.

You can access the Zip code locator directly by typing into your browser: http://www.dir.ca.gov/asp/DWCZipSearch.html. There are also various links to it from the state Division of Workers' Compensation home page.

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The Mullen & Filippi Bulletin is reprinted with the permission of the law firm from its website, www.mulfil.com.
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