Tag: 2018 News

Miami lawyers expected a state court victory in 2017 to pave the way for billions of dollars from liability and workers’ compensation insurance carriers across the nation to flow back to Medicare and its beneficiaries.

The attorneys, John Ruiz and Frank Quesada of the firm MSP Recovery, are going after major liability insurers for allegedly shirking their duty to reimburse Medicare benefit providers for conditional payments. Under the Medicare Secondary Payer law known by the acronym MCP, the government can recover double damages from a primary payer that fails to pay Medicare back for medical expenses covered by a liability policy

The home page of the firm boasts of the slogan aimed to attracted its clients who are Medicare Advantage insurance companies, challenging them to “DISCOVER YOUR LOSSES – RECOVER WHAT’S YOURS.”

No attorney had ever secured class certification under the Medicare Secondary Payer law. A nuanced interplay between federal and state laws made it difficult to establish common issues of law and fact. But MSP Recovery overcame those obstacles in Miami-Dade Circuit Court in 2017, where Judge Samantha Ruiz Cohen certified a class in a lawsuit against the auto insurer Ocean Harbor Casualty Insurance, a primary payer for thousands of Medicare Part C beneficiaries.

The judge also noted MSP Recovery has developed a sophisticated system to identify claims by collecting and matching data including Centers for Medicare & Medicaid Services reports, automobile crash reports, ambulance records, insurance declaration sheets and no-fault personal injury protection payout sheets.

That system has allowed the 30-attorney firm with roughly three dozen partner firms across the country to divide claims into categories and file lawsuits across the country on behalf of more than 100 health plans. Their firms boasts of more than 100 class actions pending in state and federal courts across the nation. Targeted defendants include companies such as Allstate Property & Casualty, Liberty Mutual, State Farm Mutual Automobile, Geico and others.

But the firm has suffered some setbacks. Just recently, MSP Recovery LLC and several of its attorneys have been sanctioned by a Federal District Court.The decision is entitled Recovery v. State Farm Mut. Auto. Ins. Co. 2018 U.S. Dist. LEXIS 95789, U.S. District Court for the Central Dist. Of Ill. (June 7, 2018).

This class action involved the usual allegations by MSP Recovery LLC, essentially that MSP Recovery has assignments from various MAPs that have made Medicare conditional payments wherein State Farm should have been the primary payer and/or reimbursed the MAPs that made those conditional payments.

MSP Recovery failed to allege any facts supporting their claims. More particularly, MSP Recovery LLC failed to identify any MAPs that allegedly paid medical expenses on behalf of Medicare beneficiaries. MSP Recovery then filed its first Amended Complaint, and then attempted a Second Amended Complaint to correct the deficiency. The court found MSP Recovery’s contradictory statements to be “palpably absurd and clearly wrong under the law.”

The court issued Rule 11 sanctions in the amount of $5,000 against three of MSP Recovery LLC’s attorneys, as well as an additional $5,000 against MSP Recovery LLC itself, for a total of $20,000.

The Court explained that “Plaintiffs characterize their inaccurate allegations as “correctable flaw[s].” (Doc. 88 at 4). They argue that “it is in the nature of the course of litigation to discover additional facts that change the accuracy of the pleadings”. Id. The Court would be more amenable to this argument if Plaintiffs discovered these inaccuracies early on in litigation, or at least owned up to the misstatements once the Court questioned the Second Amended Complaint’s accuracy in April. The parties have been litigating the issue of standing for over a year, and this is Plaintiffs’ third attempt at filing an adequate complaint.”

Jessica Aram worked as a genetic counselor for Laboratory Corporation of America Holdings. She provided prenatal genetic counseling to patients at several clinics in Southern California, including followup care and counseling when a genetic test revealed abnormal results.

A dispute arose between Aram and LabCorp about the content of her clinical notes. The dispute was not resolved between them regarding the details provided in her documentation. . Her employment was terminated by LabCorp in October, 2011.

In 2014, Aram filed a civil complaint against her employer asserting causes of action for wrongful termination, retaliatory discharge,violation of whistleblower protections, and intentional infliction of emotional distress. Aram alleged that respondents’ bullying and threats constituted the basis of her claim for intentional infliction of emotional distress.The employer moved for summary judgment or, in the alternative, summary adjudication.

After hearing argument and orally explaining its analysis of the evidence, the court granted the motion and dismissed her case.

In addition to ruling against her substantiative claims, the court also found that the employer’s actions did not “constitute extreme or outrageous conduct” to support the claim for intentional infliction for emotional distress, and the claim was “barred by the exclusivity provisions of the California Workers’ Compensation Act.”

The Court of Appeal affirmed the judgment in the unpublished case of Aram v. Esoterix Genetic Labs LLC .

On appeal, among other employment law related issues, Aram claims the trial court erred in concluding that her claim for intentional infliction of emotional distress was barred by the exclusivity provisions of the California Workers’ Compensation Act. The Court of Appeal disagreed.

The Court noted that when a claim of intentional infliction of emotional distress is based on allegedly wrongful conduct that “occurred at the worksite, in the normal course of the employer-employee relationship” then “workers’ compensation is [a plaintiff’s] exclusive remedy for any injury that may have resulted.”

This is so even when the alleged emotional distress arose from conduct that would support whistleblower claims such as those alleged by Aram.

She would be required to show “extreme or outrageous conduct” to circumvent the exclusive remedy limitation.

At its Silicon Valley headquarters, network gear maker Cisco Systems Inc is going to unusual lengths to take control of the relentless increase in its U.S. healthcare costs.

According to Reuters, the company is among a handful of large American employers who are getting more deeply involved in managing their workers’ health instead of looking to insurers to do it. Cisco last year began offering its employees a plan it negotiated directly with nearby Stanford Health medical system.

Under the plan, physicians are supposed to keep costs down by closely tracking about a dozen health indicators to prevent expensive emergencies, and keep Cisco workers happy with their care. If they meet these goals, Stanford gets a bonus. If they fail, Stanford pays Cisco a penalty.

Cisco said costs for Stanford plan patients are 10 percent lower than conventional coverage still used by most of its employees. Chipmaker Intel Corp told Reuters it is saving 17 percent on its workers enrolled in a similar plan, known as Connected Care. Aircraft manufacturer Boeing Co and Walmart Inc, the world’s largest retailer, have likewise hammered out health plans directly with providers.

The movement is small, just a few very large U.S. corporations that have signed up tens of thousands of workers so far. Their early efforts show the challenges of changing behaviors among patients and doctors.

But they speak volumes about corporate America’s frustration with inexorably rising medical costs and the traditional insurers that sell them coverage.

Corporations help pay for healthcare for more than 170 million Americans, in most cases working with an insurer to handle everything from the price of treatments to medical claims.

These employers will spend an estimated $738 billion on health benefits in 2018, a figure that has been rising about 5 percent annually in recent years, according to federal data.

Other big firms are watching closely. Amazon.com Inc, JPMorgan Chase & Co and Berkshire Hathaway Inc said in January they will form an independent company to improve healthcare for their roughly 750,000 U.S. employees, prompting speculation that they would displace health insurers and other industry “middlemen”.

To boost enrollment, all three companies have dangled sweeteners such as extra money for health savings accounts or lower monthly premiums and co-pays. The approach also requires employers to take a more hands-on role.

Cisco’s experiment began in 2008 when it opened the campus clinic for all of its employees there. Designed like a spa, the facility offered primary care in new-age sounding treatment areas: body, mind, heart and spirit.

The savings were notable: about 30 percent compared to an offsite doctor’s office. Cisco later brought in Stanford to develop a full-blown medical plan, which took effect in 2017. Stanford operates the clinic and provides more specialized services through Stanford University’s medical system.

Adrian Camacho began working as a cashier at Target in 2012.

Target has a zero-tolerance policy with respect to harassment and discrimination in the workplace. Camacho complained to his supervisor and to individuals in the Human Resources Department, and also called Target’s “Anonymous Hotline,” regarding repeated verbal harassment from his coworkers at Target based on the fact that he is gay. According to Camacho, his coworkers would ridicule, mimic, and mock him, sometimes in the presence of Target customers.

Camacho alleges that rather than take corrective action in response to his complaints, Target instead retaliated against him by denying him a promotion and allowing the hostile work conditions to continue, unabated.

In August 2014, prior to resigning, Camacho filed a claim for workers’ compensation benefits, based on his assertion of workplace injuries that he suffered as a result of the harassment he endured while employed at Target. Specifically, Camacho asserted injuries related to head and neck pain, as well as digestive and psychological problems.

Camacho settled his workers’ compensation case with Target. He executed the mandatory preprinted Compromise and Release (C&R) form that is utilized in all workers’ compensation cases. Camacho and Target also executed an addendum and received $12,000 in exchange for executing the settlement document.

Camacho received a right-to-sue letter from the DFEH and then filed a civil complaint against Target in which he asserted several causes of action for discrimination based on sexual orientation, and harassment causing a hostile work environment.

Target moved for summary judgment. The trial court concluded that the C&R and Addendum executed by the parties in Camacho’s workers’ compensation case constitutes a general release of all potential civil claims that Camacho might have as a result of the harassment he experienced at Target. The court entered judgment in favor of Target and Camacho appealed. The Court of Appeal reversed in the published case of Camacho v Target.

Target relied on language in the C&R Addendum that said he released Target for the Workers’ Compensation claim “or any other claims for reimbursement, benefits, damages, or relief of whatever nature.”

The Court concluded that “After examining the language of the entire document, including the preprinted C&R and Addendum A and considering each term within the context of the others, it is clear that there is no reference in either the C&R or Addendum A to any causes of action outside the workers’ compensation system, much less to a release of such claims in “clear and nontechnical language,” as is required under Claxton v. Waters (2004) 34 Cal.4th 367.

The Court of Appeal ruled that a couple who were seriously injured while checking on a neighbor who had made a 911 call at the request of a deputy sheriff were assisting in “active law enforcement” at the time. Thus their exclusive remedy was under California Workers’ Compensation.

A Trinity County deputy sheriff phoned citizens James and Norma Gund — who do not work for the County — and asked them to go check on a neighbor who had called 911 for help likely related to inclement weather.

The Gunds unwittingly walked into a murder scene and were savagely attacked by the man who apparently had just murdered the neighbor and her boyfriend. The assailant fled.

The Gunds sued the County of Trinity and the deputy — Corporal Ron Whitman — for negligence and misrepresentation, alleging defendants created a special relationship with the Gunds and owed them a duty of care, which defendants breached by representing that the 911 call was likely weather-related and “probably no big deal” and by withholding information known to defendants suggesting a crime in progress — i.e., that the caller had whispered “help me,” that the California Highway Patrol (CHP) dispatcher refrained from calling back when the call was disconnected out of concern the caller was in danger, and that no one answered when the county dispatcher called.

Defendants filed a motion for summary judgment on the ground that plaintiffs’ exclusive remedy was workers’ compensation. The trial court adopted the defense theory and entered summary judgment and the Gunds appealed. The Court of Appeal affirmed the judgment in the published case of Gund v County of Trinity.

Where workers’ compensation is available, it is the exclusive remedy for work-related injury. (§ 3602.) Workers’ compensation is generally not available to persons “performing voluntary service for a public agency” who do not receive remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses. (§ 3352, subd. (a).) Section 3366 provides an exception for civilians assisting peace officers in “active law enforcement.”

Section 3366 provides that each person “engaged in the performance of active law enforcement service as part of the posse comitatus [power of the county] or power of the county [sic], and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation]. . . .”

Corporal Whitman would have been performing “active law enforcement service” if he himself had gone to the 911 caller’s home to check on her. Plaintiffs knew they were responding to a 911 call, and therefore they were assisting in active law enforcement.

“We conclude plaintiffs were engaged in assisting in active law enforcement at the deputy’s request, and their remedy was worker’s compensation under section 3366.”