NEWS IN WORKERS' COMPENSATIONView as webpage |
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IN THIS NEWSLETTER: ♦ Upcoming Employer Deadlines ♦ BWC: Outpatient Prospective Payments ♦ EMPLOYER SPOTLIGHT: MOSCARINO & TREU, LLP
♦ HR Corner: Honoring Our Own! |
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It has certainly been a busy summer and in light of many recent events, AdvoCare, Inc. brings you updates on BWC deadlines and announcements, news from the Ohio Supreme Court, and reports on discussions taking place within the state regarding the potential privatization of Managed Care Organizations. We would like to give a special thank you to Kathleen E. Gee, Esq. and Michael J. Bertsch, Esq. of Moscarino & Treu LLP for their contributions to our client spotlight. In the meantime, as your managed care organization, we welcome any questions and/or comments. Please feel free to contact us at info@advocaregroup.com or at 216.514.1451 (toll free 800.659.4025). |
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| Upcoming Deadlines in 2011 | ||||||||||||
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| Outpatient Prospective Payment System BWC | ||||||||||||
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Effective January 1, 2011, the Ohio Bureau of Workers' Compensation (BWC) began paying outpatient hospital bills according to the CMS/Medicare methodology called the Outpatient Prospective Payment System (OPPS). The OPPS significantly changes how hospitals are reimbursed for outpatient services. Hospitals are no longer paid a percentage of charges billed, but rather data such as age of patient, diagnosis, procedure(s) performed, and geographic location of facility are entered into an Outpatient Code Editor and a reimbursement rate is established based on national standards for services rendered. In most cases the hospital is reimbursed considerably less than what they charged; however in some rare cases the hospital can be reimbursed more than they charge if the procedures formed or services rendered have a higher national standard reimbursement rate. BWC adopted this new payment methodology in order to reduce the ever increasing cost of health care and to be consistent with the established CMS/Medicare payment system as most hospitals are familiar with this billing process. —Deb Curry, RHIA, CCS-P |
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| Public Policy Protection for Workers’ Compensation Retaliation Sutton v. Tomco Machining, Inc., 2011-Ohio-2723 |
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Within an hour of his reporting a work injury, Defendant Tomco Machining fired Plaintiff Sutton for no specific reason, but told him the discharge was unrelated to performance or a policy violation. Sutton sued Tomco alleging both a statutory claim for unlawful workers’ compensation retaliation under R.C. §4123.90 and a tort claim for wrongful discharge in violation of public policy. His theory was that Tomco fired Sutton to avoid a workers’ compensation claim and higher workers’ compensation premiums. The Supreme Court of Ohio addressed only the issue of whether an employee fired after reporting an industrial injury, but before filing, instituting or pursuing a workers’ compensation claim, has a common law cause of action of wrongful discharge in violation of public policy. It did not determine whether Sutton was in fact fired for reporting a work injury. R.C. §4123.90 prohibits punitive employment action because an employee filed, instituted or pursued a workers’ compensation claim. The remedy for wrongful discharge in violation of R.C. §4123.90 is limited to reinstatement with back pay. The Supreme Court of Ohio previously held the statute does not protect an employee fired after injury but before taking steps toward pursuing a workers’ compensation claim. See, Bryant v. Dayton Casket Co. (1982), 69 Ohio St. 367. The Sutton Court newly recognized a claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory action after a work injury but before he/she files or pursues a workers’ compensation claim. It went on to limit the remedies to those set out in R.C. §4123.90, i.e., reinstatement with back pay. The Court identified the scenario alleged here as an unintended “gap” in the protections of R.C. §4123.90 that would permit retaliatory action against employees situated similarly to Sutton. Three dissenting justices voiced various concerns, including that the Court was legislating from the bench, that it improperly injected common law principles into the wholly statutory workers’ compensation scheme, and that conduct intended to dissuade or prevent an employee from pursuing a claim was not retaliatory because the employee had taken no protected action. Furthermore, the motivation attributed to Tomco by Sutton made no sense; whether or not he was fired would have had no effect on his right to a workers’ compensation claim, nor would it have prevented higher workers’ compensation premiums for Tomco Machining. This case has at least two practical effects. Most obvious is that an injured employee is now protected from “retaliatory” discharge whether or not he ever filed a workers’ compensation claim should he prove facts to support such a claim. Perhaps more important, though, is the limitation of remedies for such claims. Since public policy claims were first recognized in Ohio, plaintiffs have sought to expand their application. Of late, plaintiffs alleging workers’ compensation retaliation have made both statutory and public policy claims against their employers. The purpose behind doing so appears to be two-fold: to claim a right to a jury trial for which R.C. §4123.90 does not provide and to have access to monetary remedies beyond those specified in the statute. The Sutton Court did not address the right to a jury trial for those claiming a public policy violation. But, it supports that no public policy tort claim exists for those terminated after taking steps to pursue a workers’ compensation claim. Therefore, most future cases of wrongful discharge invoking R.C. §4123.90 should be based solely on the statute, meaning there is no jury trial right and the plaintiff is entitled to no damages beyond those expressly provided for. —Kathleen E. Gee, Esq.
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| Claimants May Advance Brand New Injury Theory in Court Appeal Starkey v. Builders FirstSource Ohio Valley, L.L.C. 2011-Ohio-3278 |
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On July 7, 2011, the Ohio Supreme Court, in a surprising opinion, opened the door for claimants in workers’ compensation court appeals to advance an entirely new theory of injury causation once in court. With only Justice O’Donnell dissenting, the Court held that so long as the medical condition was pursued administratively, it matters not what theory of causation the claimant decides to argue, at a later time, in the court proceedings. In Starkey, the claimant injured his left hip while working. More than two years after the incident, he successfully argued to Industrial Commission that the work injury also directly caused left hip degenerative arthritis. The employer appealed the additional allowance to court. On appeal, the claimant’s trial expert changed his opinion when his deposition was taken. Instead of the work injury causing the arthritis, the expert admitted that the claimant’s left hip degenerative arthritis was pre-existing then opined it was “directly aggravated” by the incident. The trial judge granted the employer’s Motion to Dismiss because the Industrial Commission Order did not address the condition of “aggravation of degenerative arthritis of the left hip.” The Court of Appeals reversed and the Ohio Supreme Court agreed. The two appellate courts held that since the underlying medical condition of degenerative arthritis was the same in both forums, claimant was welcome to assert a new theory of causation once in court. In their view, taking a new tack to prove the same medical condition would not circumvent the administrative process nor ambush employer-defendant. The Supreme Court’s syllabus reads:
The Supreme Court, under the oft-cited statutory rubric of “liberally construing the workers’ compensation law in favor of claimants,” has dramatically altered the landscape of court appeals and disappointingly diverged from its 2005 holding in Ward v. Kroger, 2005-Ohio-3560. The holding in Ward was quite clear in limiting claimants’ court appeals to only those injury claims that were first considered by the Industrial Commission for adjudication no matter that the parties may offer new evidence in court. No longer. Now a claimant who pursues one theory of injury before the Commission, can chart a whole new course in court so long as it concerns the same “medical condition.” The administrative proceedings, instead of controlling the court appeal process as gatekeeper, have been reduced to merely informing the parties of the triable issues. As Justice O’Donnell points outs, any new theory of causation automatically involves different elements of proof that can well impact the employer’s ability to effectively anticipate and defend an injury claim on appeal to court. The potential unfairness can be highlighted using but one example. Take the case of a workers’ compensation claimant with a diagnosed lumbar disc herniation. Before the Industrial Commission (with limited discovery), he claims the injury was directly caused by a single incident at work. Claimant wins and the employer appeals to court. Lo and behold, with a greater ability to delve into the employee’s medical history, evidence turns up that the disc herniation is not a new diagnosis after all. The defendant-employer should now be well positioned to argue at trial that the work incident did not directly cause a herniated disc that pre-existed the work incident alleged to have caused it. But not so. All the claimant needs to do under the Starkey standard is to change the theory of injury; for example, have the doctor say that the pre-existing disc herniation was aggravated by the work incident, or that it developed gradually over time as a result of the claimant’s work duties. The claimant may now freely abandon any previous theory or claimed mechanism of injury when the issue reaches court. This chameleon approach to prosecuting a court appeal that has now been adopted by the state’s highest court potentially penalizes the unwary employer while rewarding facile claimants. To conclude, when in the Court of Common Pleas on appeal, claimants are no longer bound by the claim they present to the Industrial Commission, so long as it involves the same “medical condition.” Employers defending workers’ compensation claims, therefore, must now be even more vigilant in fact gathering and developing a comprehensive medical history from the very outset. Failure to do so early on, could well lead to increased cost and even greater difficulty mounting a defense in court, considering the wide latitude claimants now enjoy thanks to the Starkey decision. —Michael J. Bertsch, Esq.
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| Privatization Under Review | ||||||||||||
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The first meeting of 2011 of the Bureau of Workers’ Compensation (BWC) Task Force, chaired by Sen. Tim Grendell (R-Chesterland) took place Thursday, May 12, 2011. The purpose of the meeting was to resume investigation of whether privatizing the workers’ compensation system is constitutional and what is the best structure for Ohio. The meeting began with a presentation by Chad Readler of Jones Day who reviewed the constitutionality issue surrounding private market competition and Ohio’s BWC. The short answer, according to Readler, is that the Ohio Constitution does not need to be amended and does not prohibit or limit privatization of the workers’ compensation system in Ohio. However, he did state any type of system would need to be under judicial review, but that at this point the Legislature should be able to pass legislation under Article II. Philip Fulton, a workers’ compensation attorney, author of a book on the subject and a member of the task force, disagreed with Readler’s interpretation of the constitutionality of privatizing and with his analysis. Other members of the task force also challenged Readler’s assessment on the constitutionality of the approach. Fulton said that the constitution does not provide for a private system. He also disputed Readler’s statement regarding that a constitutional amendment is not required to privatize the workers’ compensation system. The task force also heard from representatives of the National Council on Compensation Insurance (NCCI), a clearinghouse that facilitates workers’ compensation systems in 40 states. NCCI gave a similar presentation to the members of the task force during the 128th General Assembly. NCCI representatives highlighted different state models for providing workers’ compensation to employers; reasons that states change from one model to another; and a review of Nevada and West Virginia, two of the most recent states to change their public state-run model to a private workers’ compensation system. Lori Lovgren, for NCCI, explained the various state models used in the 40 states the organization represents:
Lovgren explained that one of the benefits of a competitive state fund is that most do not pay federal income taxes with the IRS exempting state funds that operate as the carrier of last resort from federal income tax. It was pointed out by task force members that Ohio would lose the federal income tax advantage if privatization occurred. Many states have made the switch to a private competitive system because of three main variables:
Various questions that were not readily answered by NCCI representatives included market share data in other states and a comparison of insurance rates and premiums for employers and employees under a competitive system. Carter said she would provide that information to the task force. The task force, according to Grendell, plans to continue further investigation in the coming months into whether the privatization model or a hybrid structure that would maintain the state system are viable for Ohio. Story originally published in The Hannah Report on May 12, 2011. Copyright 2011 Hannah News Service, Inc.
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