Author: WorkCompAcademy

Andrews International assigned its employee Steven Paul Picazzo to work at Loyola Marymount University as a security officer between 2006 and 2013. In August 2013, LMU was erecting a new building on campus. C.W. Driver, Inc., was the project’s general contractor.

While on duty, Picazzo suffered a spinal cord injury when he tripped and struck his head against a railing at the construction site. He is now a quadriplegic. Andrews’s workers’ compensation carrier, Liberty Insurance Corporation, paid benefits to Picazzo.

Picazzo sued, among others, the general contractor Driver for negligence and for premises liability. LMU was not a named defendant. Liberty filed a complaint in intervention seeking reimbursement from any third party tortfeasor for benefits Liberty had paid. At trial, Liberty stipulated that it paid $2,849,209.62 in benefits to Picazzo.

The matter was tried by a jury, which found Driver, LMU, Picazzo, and Andrews negligent. However, the jury also found that Andrews’s negligence was not a substantial factor in causing harm to Picazzo, and therefore Andrews was not liable for damages. The jury awarded Picazzo total damages of $16,322,950.62

The jury allocated responsibility for the harm to Picazzo as follows: 40 percent to Driver, 15 percent to Picazzo, 45 percent to LMU, and zero percent to Andrews.

After trial, Driver moved to void Liberty’s lien on the theory LMU had a special employment relationship with Picazzo. Under this theory, if LMU specially employed Picazzo and the benefits Liberty paid were also paid on LMU’s behalf, then Liberty was not entitled to recover, as LMU was 45 percent at fault.

Liberty opposed the motion on the ground that whether LMU was Picazzo’s special employer was not submitted to the jury.

The trial court found against Liberty. Given what the trial court called Liberty’s “virtual admission” at trial that LMU was Picazzo’s special employer, the trial court found that Liberty’s lien should be reduced by the amount of LMU’s fault. Thus, the lien was wholly offset by LMU’s negligence, and Liberty recovered nothing on its lien from Driver.

Liberty appealed and the Court of Appeal reversed the judgment against Liberty on its complaint in intervention in the unpublished case of Picazzo v. C.W. Driver, Inc.

Whether a special employment relationship exists is generally a question of fact reserved for the trier of fact. (Kowalski, supra, 23 Cal.3d at p. 175; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857.) Hence, the jury should have decided the issue.

Even if the trial court, rather than the jury, properly decided the special employer issue, the Court of Appeal still could not uphold the trial court’s ruling. That is, the trial court did not make its finding based on evidence that LMU specially employed Picazzo. Rather, the trial court based its finding of special employment on Liberty’s supposed “virtual admission” to that fact. However, there was no such admission.

The Marin County District Attorney’s Office reported that a Novato man, already on probation for contracting without a license in a prior case, has been charged with committing the same crime again.

Victor Mauricio Mendez Rodas, 40, is also charged with failing to secure worker’s compensation insurance for crew members. He could face jail time and up to $15,000 in fines, the prosecution said.

Rodas is scheduled to appear in court on March 10.

The district attorney’s insurance fraud unit opened the case after learning that Rodas was allegedly performing work for an 83-year-old homeowner in San Rafael. The alleged crimes occurred from September to December.

“The homeowner reported that they became suspicious when Rodas demanded additional payments for unauthorized work and failed to get required permits for the work,” the district attorney’s office said.

Authorities obtained an arrest warrant for Rodas, who is not licensed with the state Contractor’s State Licensing Board, the prosecution said. The warrant was served Friday with assistance from the Marin County Probation Department Enforcement team.

Residents who hired Rodas or received solicitations from him can contact the Marin County District Attorney’s Office Insurance Fraud Unit at 415-473-6450.

Rodas was convicted of unlicensed contracting in April 2016 and March 2019, according to the criminal complaint filed by Deputy District Attorney Sean Kensinger on Feb. 19.

The 2016 case stemmed from a sting by the Marin district attorney’s office and the Contractors State License Board. Ten suspects were snared by undercover investigators offering work on a residential job in Novato.

The state had 285,630 licensed contractors as of Dec. 31, according to Kevin Durawa, a spokesman for the licensing board. He said investigations by the agency resulted in 3,957 legal actions against violators last year.

The Division of Workers’ Compensation has issued a notice of public hearing for proposed evidence-based updates to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, section 9792.23.

The public hearing is scheduled for Monday, March 30 at 10 a.m. in the auditorium of the Elihu Harris Building, 1515 Clay Street, Oakland. Members of the public may review and comment on the proposed updates no later than March 30.

The proposed evidence-based updates to the MTUS incorporate by reference the latest published guidelines from American College of Occupational and Environmental Medicine (ACOEM) for the following:

— Occupational Interstitial Lung Disease Guideline (ACOEM November 8, 2019)
— Knee Disorders Guideline (ACOEM December 3, 2019)
— Workplace Mental Health Guideline: Depressive Disorders (ACOEM February 13, 2020).

The proposed evidence-based updates to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act.

However, DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period and publish the order adopting the updates online.

The DWC has also posted an amendment to the Hospital Outpatient Departments/Ambulatory Surgical Centers portion of the Official Medical Fee Schedule.

The amendment adopts Addenda A and B of CMS’ hospital outpatient prospective payment system rate for Calendar Year 2020 found in the [January 2020 Addendum A CORRECTION.02042020.xlsx] and [January 2020 Addendum B CORRECTION.02042020] files, and replaces the original files for services rendered on or after March 1, 2020.

The order can be found at the DWC website’s OMFS page.

Floyd Skeren Manukian Langevin, LLP and Fisher & Phillips are are again co-sponsoring the 9th Annual Employment Law Seminar on August 21, 2020. This is an all-day conference, with break-out sessions, featuring Employment Law and Workers’ Compensation related-topics.

The conference is designed to provide the latest information, and helpful guidance, on Employment Law, human resources (HR), and Workers’ Compensation for employers, HR administrators, risk managers, and Workers’ Compensation claims adjusters.

HR and Minimum Continuing Legal Education (MCLE) credits will be available for attendees of the conference.

There is a great line-up of presenters including Kevin Kish, Director of the Department of Fair Employment and Housing, as keynote speaker. Featured Topics Include:

— The latest developments at the Department of Fair Employment and Housing impacting employers; 2020 vision for the workplace;
— Key risks to avoid in the crossover between Employment Law and Workers’ Compensation;
— An update on strategies for defending post-termination Workers’ Compensation cases;
— Guidance on implementing a compliant workplace catastrophe plan (e.g. for pandemic flu, major fire, and earthquake);
— Information every employer needs to know about the “California Consumer Privacy Act“;
— Ten best practices for avoiding costly HR mistakes in managing family and medical leave, pregnancy disability leave, and paid sick leave, along with a Case Law update;
— Key strategies for investigating and defending Workers’ Compensation psychiatric claims involving harassment claims;
— A review of the top ten essential workplace polices for 2020; and
— Key tips on avoiding the big Employment Law verdict.

This years event will take place on August 21, at the Disneyland Hotel, 1150 West Magic Way, Anaheim, CA 90802. Registration is at 8:00 am, and the conference is from 8:30 am to 5:00 pm
Last year’s event sold out, so make your reservation as soon as possible! Registration can be made online.

You may direct any questions to “events@floydskerenlaw.com.”

MSP Recovery LLC, a law firm out of Miami, Florida has been initiating class action litigation country-wide as assignees on behalf of Medicare Advantage Plans (MAPs) alleging that various primary payers have failed to reimburse MAP conditional payments allegedly giving rise to a Private Cause of Action under the Medicare Secondary Payer Act (MSP), specifically located at 42 USC §1395y(b)(3)(A). The litigation success of this organization should serve as a wakeup call for secondary payers, including the workers’ compensation industry. Here is the statutory back story to a new success story (for them) in a recently published appellate decision.

In 1980, to “curb the rising costs of Medicare,” Congress enacted the Medicare Secondary Payer Act, 42 U.S.C. § 1395y, which flipped the payment order, such that private insurers became the primary payers and Medicare became the secondary payer. A primary payer can include an entity responsible for providing workers’ compensation medical care.

When a primary-payer plan doesn’t or can’t pay “promptly” – say, for instance, when it is contesting liability – Medicare can make a conditional payment on behalf of a beneficiary, for which it can later seek reimbursement from the primary plan. If Medicare pays and then seeks reimbursement, only to be refused, the United States can sue the primary plan (or a medical provider) to recover its payment.

Section 1395y(b)(2)(B)(iii) contains a statute of limitations that requires the government to sue within three years of the date that Medicare receives notice of a primary payer’s responsibility to pay. The Act also contains a “private cause of action,” codified at § 1395y(b)(3)(A), which is available to Medicare beneficiaries and other private entities, who “are often in a better position than the government to know about the existence of responsible primary plans” that haven’t reimbursed Medicare or paid a beneficiary’s healthcare provider.

The private cause of action rewards successful plaintiffs with double damages after giving Medicare its share of the recovery, the plaintiff can keep whatever is left over. Unlike the government cause of action, the private cause of action contains no statute of limitations.

In 1997, in yet another effort to make Medicare more efficient, Congress enacted Medicare Part C, or the “Medicare Advantage” program. The legislation created Medicare Advantage Organizations. MAOs – like Medicare itself – were categorized as secondary payers. MAOs can sue to recover from primary plans that should pay, but don’t. MAOs, must utilize the Act’s private cause of action, rather than the government cause of action.

The case of MSPA Claims v. Kingsway Amigo began with an automobile accident in 2012. One of the people injured was a Medicare beneficiary who received her benefits from a Medicare Advantage Organization – Florida Healthcare Plus – that later assigned its claims to MSPA Claims (aka MSP Recovery LLC).

The other party involved in the accident was insured by Kingsway Amigo Insurance. The Medicare beneficiary obtained treatment for her accident-related injuries and Florida Healthcare made $21,965 in payments. The beneficiary settled a personal-injury claim with Kingsway and received a $6,667 settlement payment.

In 2015 MSPA sued Kingsway under the Act’s private cause of action. MSPA argued that Kingsway was the primary payer and Florida Healthcare was the secondary payer, giving MSPA – as Florida Healthcare’s assignee – the right to recover.

Kingsway filed a motion for judgment on the pleadings, arguing that MSPA’s claim was stale because it didn’t comply with the Act’s claims-filing provision limiting recovery claims to 3 years from the time item or service was furnished. The complaint alleged that services were provided between April 29 and July 26, 2012, Kingsway contended that a request for reimbursement had to have been made before July 26, 2015, which it wasn’t.

The district court granted Kingsway’s motion and MSPA appealed. The Court of Appeals for the 11th Circuit disagreed and reversed in the published case of MSPA Claims v. Kingsway Amigo .

The central issue in the appeal was whether MSPA’s failure to comply with the Medicare Secondary Payer Act’s claims-filing provision, § 1395y(b)is fatal to its suit against Kingsway, as the district court concluded.

In rendering its decision, the 11th Circuit Court noted that the plain reading of the MSP claims filing provision did not preclude MSPA Claims from filing suit. Essentially, the Court found that the dependent “notwithstanding” clause and the permissive term “may” in the actual text of the MSP claims filing provision means that MAOs are not required to bring suit as a prerequisite in the 3 year period.

Essentially, the permissive language within the law does not erect a separate bar that private plaintiffs must overcome to sue under the MSP private cause of action.