The National Workers Compensation Institute

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1 The National Workers Compensation Institute By: James N. McConnaughhay, General Chair National Workers Compensation Educational Conference There is exciting news to share as we enter For 25 years the Florida Workers Compensation Institute has presented the Workers Compensation Educational Conference in Orlando. In that time we have grown from some 200 attendees and no exhibitors to over 8,000 attendees and hundreds of exhibitors. That phenomenal growth has allowed us to continually reach out to more audiences, sponsors, speakers, and participants. The Conference has evolved into a national presence, attracting national organizations, national speakers, and attendees from across the country. Today, I am proud to announce that we are a truly national conference, and a name change and other initiatives in 2012 will reflect that. While FWCI will continue as a state-specific organization, we have created the National Workers Compensation Institute (NWCI) as an umbrella organization, and have formally renamed the conference the National Workers Compensation Educational Conference (NWCEC). A major part of our rebranding efforts will be the launch of a NWCI website this spring. The site will be the main source of information on the annual conference and also serve as a resource for all things workers comp. This is a massive task and was undertaken only after a great deal of thought and discussion. The new website and the entire rebranding process reflect our commitment to orient the FWCI Board Members, J. David Parrish, Entertainment Chair, Steve Rissman, Program Chair, Gerry Rosenthal, Vendor Chair, and Jim McConnaughhay, General Chair. conference toward a more national audience and to offer an increasingly dynamic forum for presenters and attendees. We are not forgetting our roots, however. Orlando will remain the home base for our annual conference; we are already booked at the Orlando World Center Marriott through FWCI will continue to be the premier resource for those of you seeking Florida-specific workers compensation educational opportunities. We already are hard at work building the new site and gathering content. Joan Collier, the former editor-inchief of Florida Underwriter, is our online communications officer. For those of you who would like to contribute material (articles, slideshows, PowerPoint), she has developed the editorial guidelines (see page 27). I encourage you to contact her and talk over your ideas.

2 FWCI Hall of Fame Announced! By: Steve Rissman, Program Chair and President Florida Workers Compensation Institute Hall of Fame National Workers Compensation Educational Conference FWCI has recognized that there are a lot of individuals who have made the Florida workers' compensation system work. In response to that, the Institute decided to sponsor a Workers' Compensation Hall of Fame effective January In order to be elected to the Workers' Compensation Hall of Fame, an individual had to devote an entire career to the betterment of the workers' compensation system. Individuals from industry, attorneys and judges were all eligible for nomination and election. Eighteen individuals were elected to the charter class of the Workers' Compensation Hall of Fame. An induction dinner was held on January 13, 2012 for the 18 recipients. The members elected representing injured workers were: David Parrish, Gerry Rosenthal, Richard Sicking, Ray Malca, Dan Hightower and Glen Wieland. The members elected representing employers and carriers were Jim McConnaughhay, Al Frierson, Steve Rissman, George Kagan, Steve Kronenberg and Tom Conroy. The members elected representing the judiciary were: Judge John Lazzara, Judge Stephen Rosen and Deputy Chief Judge David Langham. The members representing industry were: Joe Keene from FCCI and Bob O'Halloran from Summit s Claims Center. Stewart Colling was elected to the charter class posthumously. At the meeting and induction, Steve Rissman was elected President of the organization. In addition to devoting ones entire career to making the workers' compensation system better, the elected individuals had to have something more. The plaques that were awarded to the elected individuals say it best: "In appreciation for devoting their distinguished career to the betterment of the workers' compensation system in the State of Florida and for providing leadership, dedication and service to advance the highest philosophy and practice of workers' compensation." There really can be no question or debate about the qualifications of the individuals elected to the charter class. All of them have noteworthy and spectacular personal qualifications. Some are claimants' lawyers and some are defense lawyers. Three are judges of compensation claims and two are among the giants of industry. In order to be elected to the Workers' Compensation Hall of Fame, a nominee must receive 75% of the vote of the active members. The charter class was unanimously elected by the Board of Directors of the Florida Workers' Compensation Institute. In all subsequent years, it will be the members, rather than the Board of Directors that vote. It is the intention of the Hall of Fame to create - next year - a wing of the Hall of Fame dedicated to those whose broad shoulders established the workers' (Back Row, L-R), Hon. John Lazzara, Hon. Steve Rosen, J. David Parrish, Jim McConnaughhay, Steve Rissman, Dan Hightower, George Kagan, Joseph Keene, Glen Wieland, Steve Kronenberg, (Front Row, L- R) Hon. David Langham, Ray Malca, Tom Conroy Gerry Rosenthal, Bob O Halloran, (not pictured) Al Frierson and Richard Sicking. 2

3 compensation in the 1950s, 1960s and 1970s. In order to be nominated for that wing of the Hall of Fame, one has to be retired entirely from the field of workers' compensation. Naturally, for this wing of the Hall of Fame, a deceased individual can be nominated and elected. The members of the Hall of Fame hope that this organization will shine a positive spotlight on what is good and positive about the workers' compensation system. In subsequent articles in this Newsletter, and upcoming issues, the 18 individuals of the charter class will be profiled. Give Kids the World! In partnership with the Marriott Hotel World Center, the Workers Compensation Institute in 2011 announced its newest Spirit to Serve, in support of Give Kids the World. Many participated in the program in 2011, providing their labor on Saturday before the educational conference. The Institute s commitment to this worthy cause will continue in 2012 in conjunction with the 67 th annual workers compensation education conference (WCEC). The Give Kids the World Village is a 70 acre storybook resort located in Orlando, minutes from the WCEC host Marriott World Center. The story of Give Kids the World Village is inspiring, but more humbling. The story of Give Kids the World begins with a little girl with a wish and the desire of one man to make that wish come true. The little girl's name was Amy. Amy had leukemia and one wish - to visit the theme parks in Orlando. To facilitate Amy's wish, the request of a complimentary stay was made to a respected hotelier. As he had done many times before, the hotelier gladly obliged and Amy's wish was that much closer to being realized. Sadly, the remainder of Amy's travel plans took too long to arrange and her wish was never granted; Amy had passed away. Time simply ran out. Give Kids the World, provides memorable, magical, cost-free experiences to children with life-threatening illnesses and their families. There are a variety of opportunities for volunteers, involving direct assistance to the children that are in residence at that particular time or involving service to the facility itself, to keep it in prime condition for those children. 3

4 FWCI Hall of Fame Inducts Tom Conroy, Esq. Tom Conroy was born in Jersey City, New Jersey in In 1953 he and his family moved to Lancaster, Pennsylvania where Tom completed his high school education. After high school Tom attended the University of Miami and majored in Politics and Public Affairs. Tom graduated from the University of Miami with a B.B.A. in Tom moved upstate to attend Florida State University, receiving his Juris Doctor from that institution in Since his admission to the Florida Bar in 1974, he has specialized in the defense of workers' compensation claims. Initially employed as house counsel for a major insurance company, Tom went on to become an assistant city attorney for the City of Miami. In this position, he began to acquire an expertise concerning the problems unique to municipalities and self-insured's. Tom Conroy and Bruce Simberg founded the firm Conroy & Simberg, P.A. in 1979 and Tom continued to specialize in workers' compensation defense. During the years Tom was a partner at the firm, the firm grew from having two founding partners to a firm comprised of over 140 attorneys in eight locations throughout the state of Florida. When board certification in workers' compensation was started in 1988, Tom passed the examination and remained board certified until his retirement in From 2004 through 2008, the South Florida Legal Guide recognized Tom as one of South Florida's Leading Attorneys and he has also been named a "Florida Super Lawyer" in that yearly publication. Tom has tried cases before Judges of Compensation Claims throughout the State of Florida. In addition, he has argued before the Industrial Relations Commission, The First District Court of Appeals and the Florida Supreme Court. Prior to his retirement, Tom was a member of the American Bar Association, the Dade County Bar Association, the Broward County Bar Association and the Palm Beach County Bar Association. He was also a member of the Defense Research Institute and has emeritus status on the Workers' Compensation Executive Council on which he served as its chair from August 2006 to August He has served as a trustee and as president of the Friends of 440. Tom is proud to be among those initially involved in the Friends of 440 Scholarship Fund and continues to serve on the Board of that organization. Tom is now retired and lives with his wife, Michelle, in Henderson, Nevada. He enjoys retired life and spends time exercising and hiking in both the mountains and the desert. Tom also enjoys the excellent dining and shows that Las Vegas has to offer and is known to occasionally drop into a casino to make a wager. He considers himself fortunate to have fallen NWCI General Chair Jim McConnaughhay, Tom Conroy, and NWCI Program Chair and Hall of Fame President Steve Rissman at the Hall of Fame Inductions, January 13, upon the practice of workers compensation law, a field which he barely even knew existed when he graduated from law school. Tom says, "To me, Workers' Compensation is the best area of practice that I could have possibly found. The practitioners are extremely knowledgeable and the Judges are competent to deal with any problem and any case presented to them. The mediators are excellent at facilitating resolutions to allow the system to function without enormous backlogs. The most surprising thing about comp was that I could argue with my opponents and my competitors during the day but still feel comfortable to socialize with them at night. Because of that I count many of my legal adversaries as close friends. I am not sure this is the case in other practice areas." 4

5 The Way It Was By: Stephen L. Rosen, Judge of Compensation Claims, St. Petersburg When asked to write about the practice of Workers Compensation in the Tampa Bay area during the period of my early practice until December 31, 1993, I thought it would be a fun trip down memory lane. And it was... I took the Florida Bar examination in February of 1974 and started going through the phone book to contact law firms to find a job. It didn't matter which area of law; I just needed a job. After only one day of searching, I was hired by the law firm of Marlow, Mitzel and Ortmayer, based out of Miami with a Tampa office, handling personal injury and Workman s Compensation (the former name of the law used only once in this article) defense. I was assigned to the Workers Compensation department which was, basically, me at that time. I have broken my time as a Workers Compensation practitioner into two 19 year eras: the first, about which I reminisce, is from 1974 to December 31, 1993 which I refer to as the "Golden Era of Workers Compensation Practice." The second, which began January 1, 1994 with the effective date of drastically new amendments to chapter 440, I refer to as "The Era to Be Named Later." In Tampa up to 1993, the Comp judges in Tampa were Tom Miller, Daniel Gallagher, Louis Tidwell, CJ Hardee, William D. Douglas, Kathleen R. Hudson, John Lazzara (still a JCC in Tallahassee), and Joseph Murphy (still on the bench in Tampa). In St. Petersburg, the Comp judges were Richard Davis, Barry Salzman, Stephen Masterson, Stephen Everhart, James T. Earle, Jr, Gary Frazier, Jonathan Alpert, Joe Willis, Ann Robbins and Donna Remsnyder (currently administrative judge in St. Petersburg). In Lakeland, Leonard Blanker was the Comp judge followed by Charles Hurt and Charles Vocelle. The Tampa office was located on Twiggs street near the County Courthouse. The St. Petersburg office was on Mirror Lake Dr. and the Lakeland office was on Lake Hollingsworth. Upon becoming a member of the Florida Bar, I was immediately thrust into the litigation arena in Workers Compensation. Hearings were not automatically set when a Petition for Benefits was filed. Claimant's attorney's would have to file a Request For Hearing, a one page letter sized form, and then the JCC would set the hearing, Pre hearings were not mandatory and you could have the fun of trial by ambush. Witness lists were not always required, and the attorneys had to actually talk to each other to coordinate the final hearing. In the 1970s and into the 1980s, many of the Workers Compensation practitioners learned to handle personal injury cases, both plaintiff and defense, having gotten a head start because of their vast background in medical/legal issues they faced in Workers Compensation. Many members of the Florida legislature were experienced Workers Compensation practitioners in the Tampa Bay area including such lawmakers as T. Terrell Sessums, Louis de la Parte, H. Lee Moffitt, Tom J. Johnson, and Elvin Martinez. A number of Circuit and County court judges had started off as Workers Compensation lawyers or judges. When Workers Compensation issues came up in other forums, it was not a voodoo issue; the powers that be were knowledgeable about Workers Compensation. It wasn't just another form of insurance. When legislative reform was on the table (which it seemed to be every year from 1973 to 1993) in the Florida legislature, many committee members were actually Workers Compensation 5 practitioners who knew the ins and outs of the system.

6 When speaking about access to the legislature and Workers Compensation reforms, one name stands above all in the Tampa Bay area, if not the entire state, as the "go to gal" regarding proposed legislation: that would be Mary Ann Stiles, the universally acknowledged "Queen of Comp." Ms. Stiles, of all the lawyers who practiced Workers Compensation in the Tampa Bay area, was the most involved in minimal and significant changes to the law during the "Golden Era". In the 1970s and for the rest of that era to 1993, lawyers from around the state such as Jim Mcconnaughhay, Steve Rissman, Gerry Rosenthal, Barry Keyfetz, E. J. Davis, Richard Sicking, J. Mason Wines, Ray Malca, Barry Salzman, Mick O'Brien, Bill Douglas, Bud Adams, Al Frierson, David Parrish, John Kest, David Roemer, Peter Burkert, Tom Koval, Richard Sadow and maybe even myself spent countless hours in Tallahassee educating the lawmakers on the pros and cons (mostly) of proposed Workers Compensation reforms. But, legislatively, Ms. Stiles stood above the rest in this writer s opinion. Workers compensation was the type of practice at that time in which the experienced lawyers, claimant and defense, would educate younger lawyers to keep them in the system. These lawyers worked hard for their clients and wanted to win cases as badly then as lawyers do now. However, it did not seem that winning was everything; you didn't make a lot of money per case on either side of the table, but you had a lot of cases. It was clearly a volume practice rather than an attempt to squeeze every dollar out of every case. Attorneys fees hearings were a rarity. There was really no such thing as "case costs." Judges could speak freely to lawyers on or off the record without fear of complaint to some nominating committee. At that time, a sitting Comp judge who was recommended for reappointment by the local nominating committee was automatically reappointed by the current Governor who was required by statute to reappoint, basically without question, the sitting Comp judge who was recommended by the nominating committee. As a young defense attorney, the claimant s attorneys worked hard to develop a rapport with me rather than to take me to the cleaners. They were so gentlemanly and smooth that I hardly felt the knife going in. And, then, it was only the tip of the knife rather than pushing it through to my heart. In 1979, the Legislature passed a compensation system for injured workers known as "Wage Loss." If the Workers Compensation system was a rock 'n roll band at that time it would have been named "Widespread Panic". But after four years of struggle, the "Golden Era" righted itself. In the Tampa Bay area, claimant and defense lawyers took appeals on excellent issues which laid the groundwork for the ultimate decisions by the appellate courts to clarify the new compensation system. Prior to the 1979 amendments, the appellate court for Workers Compensation claims was a court dedicated solely to workers compensation claims known as the Industrial Relations Commission. Led into the "Golden Era" by Steve Slepin and Leonard Carson, this appellate court made many significant decisions in the interpretation of the workers compensation law. Oral arguments were held on Monday, Tuesday, and Wednesday in Tallahassee on the first two weeks of the month. When you went up to Tallahassee for argument, one would meet with comp lawyers from all over the state and it was quite a friendly affair. Other members of the court, at one time or another into 1979, included Elmer Friday, Leander Shaw, Winifred Wentworth, and Burnis Coleman. In 1979, this appellate body was abolished and Workers Compensation appeals fell within the jurisdiction of the First District Court Of Appeal where it still lies. That court grew immediately in size because it received about 1000 Workers Compensation appeals as soon as the 1979 amendments became effective. There are so many names to recall. If you practiced in Tampa, then you probably also practiced Workers Compensation law in Lakeland and St. Petersburg. If you practiced in Tampa or St. Petersburg, you probably went to Bradenton and Sarasota. Some of the names of the skilled practitioners in the 6 Tampa Bay area to whom a young lawyer

7 could look to for guidance were Ric Mitzel, Joe Barrs, Joe Melendi, Steve and Terrell Sessums, Dal Albritton, Bill and Paul Kaleel, Peter Behuniak, Guy Perenich, Bob Carroll, Joe Thury, Rodney Durrance, Richard Crooke, Richard Senty, Frank May, Walter Crumbley, Calvin Pope, John Williamson, Bill Douglas, Cliff Howell, Marvin B. Woods, Chester Skipper, Del Arduengo, Dan Burton Phil Rogers, Mason Wines, Bill Blake, James B. Thompson, Jerry O'Riordan, Billy Rowe, Joe Carey, Jimmy "The Jet" Thompson (Tampa), Ray Tavares, Sy Honig, Dick Valeri, Eugene (Gene) Harris, Bill Switalsky, John Chilldon, Bob Mann, George Meros, and David Williams to name a few. And then there were my peers of age in the Tampa-St. Petersburg-Lakeland-Sarasota-Bradenton area who entered the "Golden Era" about the same time as I did: Jim Smith, John Shofi, Ivan Matusek, John Kaylor, John G. Thompson, John H. Thompson, Jim Delesie, Bill Levens, Tom Cassidy, Mike Murphy, H. Guy Smith, Bob Byelick, Charlie McQuillan, Harry Goodhart, Mark Hungate, Keith Mann, Mike Meksraitis, Larry Samaha, Jim Jones, Mike Haworth, Alex Lancaster, Robert Todd, George Cappy, Larry Beltz, Scott Brasfield, Don Anderson, John Kaylor, John McFadyen, Big Jim Clark, Richard Bokor, Bill Holt, Wayne Myers, Judge Tom McGrady, Doug Spangler, Gary Frazier, Tom Masterson, Jake Smith and a host of young lawyers in the Tampa Bay area who picked up the torch of the Workers Compensation practice. Of course, in addition to Ms. Stiles, other ladies entered the Workers Comp arena as formidable litigators in the Tampa Bay area: Nancy Cavey, Dawn Hayes, Rosemary Eure, Janet Jaspers Poluse, Ellen Lorenzen, and Gwynne Young (current President-Elect of The Florida Bar). However, in the Tampa Bay Workers Compensation arena, James T. Earle, Sr. deserves special mention. In a 40-plus year career over the 1960s, 1970s, 1980s, and 1990s, Mr. Earle made his mark as a defense attorney but also represented many claimants in excellent fashion. In the 1970s, he decided that he was going to hire lawyers who worked for the Special Disability Fund in Tallahassee since the Fund was a great source of return revenue to insurance companies because the employer hired an employee with a pre-existing disability. So, many new lawyers came in to the Tampa Bay area because of Mr. Earle. During his practice time, Mr. Earle trained nearly two dozen superior lawyers, including his son, Jimmy, Jr., who went on to represent both employer/carriers and claimants during the course of their practices. Mr. Earle had a favorite term that began with the word "sum and ended with a word referring to a female dog. It didn't matter if it was a doctor, lawyer, judge, legislator, insurance adjuster, claimant or employer---mr. Earle used his term of endearment indiscriminately. After Mr. Earle passed away, Bill Douglas, while he was a Judge of Compensation Claims, kept a picture of Mr. Earle in his office that depicted Mr. Earle irreverently indicating that everybody looking at the picture was "number one" in his book... no human being, however self-important, avoided Mr. Earle's opinion. There were some "larger than life" claimant and defense lawyers in the Tampa Bay area and the Workers Compensation litigation system ran smoothly because all of the lawyers knew each other and were able to accomplish excellent representation for their respective clients through the cutting of corners and getting to the chase. It was a very professional practice and the Florida Bar would never have had to amend its oath of attorney to include professionalism with these lawyers. We beat each other up between nine and five and it rarely became personal. Once the closing bell rang, it was common to spend time together after hours simply as 7

8 a group of Workers Compensation practitioners. In many ways, the Workers Compensation litigation system has become bigger and better, as well as bigger and worse, but to have practiced in the "Golden Era" in Tampa Bay brings back fond memories that can never be taken away. To those of you whose names I inadvertently left out, I apologize. To those of you who helped me out with the depth of your memories, many thanks. FWCI Hall of Fame Inducts Daniel Hightower, Esq. Daniel L. Hightower graduated from Stetson Law School in 1973 and has been practicing law in Ocala since then. He began his professional career by joining a law firm in Ocala where he served for 14 years, and in 1987 he opened Daniel L. Hightower, P.A., Lawyer. Dan has served as a part-time Assistant State Attorney, President of the Marion County Bar Association, and Chairman of the Marion County Grievance Committee of The Florida Bar. In 1988, he was appointed by Governor Bob Martinez to the Fifth Judicial Circuit Nominating Commission and in 2011, he was awarded The Florida Bar President s Pro Bono Service Award at The Florida Supreme Court for legal services provided to people who are unable to afford a lawyer. Dan holds an AV Preeminant rating from the Martindale Hubbell Peer Review, which is the highest level attainable by an attorney and represents the highest level of skill and integrity. He has actively practiced in the areas of workers compensation, personal injury and wrongful death since NWCI General Chair Jim McConnaughhay, Dan Hightower, and NWCI Program Chair and Hall of Fame President Steve Rissman at the Hall of Fame Inductions, January 13, WCEC A Partnership Between 8

9 What is going to Happen in Workers Compensation This Year? By: Joe Paduda There's a lot happening in the work comp industry: a hardening market; frequency ticking up; consolidation/mergers/acquisitions and buyouts ( M&A ); legislative and regulatory changes; and management moves. And all this against the backdrop of a very big election year. So here's what I'm going to be watching for. 1. Health reform will impact workers comp. I have no idea what the Supremes will do when they rule on the constitutionality of the PPACA, aka health reform bill. Their ruling could kill the law, leave it alone, or eliminate the individual mandate. But no matter what the official decision is, the health financing and delivery industries have changed dramatically over the last two years, and that change will only accelerate over the next two. The rapid consolidation of health care providers, growth (via acquisition) of delivery systems, and acquisition of providers and provider-based managed care plans by payers is changing the landscape, as is the expansion of Medicaid. Health plans KNOW they have to change their models, get bigger, invest billions in technology and solidify and strengthen relationships with providers, regardless of whether reform survives or not. All health plans are very tightly focused on those strategic imperatives. As a result workers comp, long a sideline, has been relegated to a position of insignificance, with one exception - Anthem. I'd expect to see the Big Blue continue to expand their work comp presence, but they'll be the only one to keep pushing. The rest are too busy worrying about the 98% of the business that is group, Medicare and Medicaid. For comp, network discounts will diminish, That doesn't mean medical costs will increase, as discounts don't always, or even most of the time, equal savings. Network options will change, and we'll see more piece-mealing of networks as other payers follow the lead of Broadspire and now ESIS and diversify their network relationships. 2. M&A (Mergers and Acquisitions) in comp is going to accelerate. There was a lot last year, but 2012 is going to be the year of the deal. With the pending changes in capital gains slated to kick in a year from now, several private equity-owned companies getting well past the three year horizon (and a couple past five), some long-time entrepreneurs looking to ride off into the sunset, and what appears to be an uptick in valuations, it's a no-brainer. 3. Comp rates will go up. Well, this already started, but it bears repeating. After a way-too-long soft market, it's about time pricing sanity returned. Higher work comp premium rates will drive business to TPAs, encourage risk managers to, well, actually manage work comp risks, increase vendor business (think UR/case management, PT, bill review, and networks) and generally help all of us in the industry. 4. Attacking opioid addiction and dependency will hit the top of many payers', regulators', and Employers' agendas. Led by reports and publicity from notables including Gary Franklin, Medical Director of Washington State's work comp fund, Alex Swedlow of CWCI, WCRI and NCCI, there's been a tremendous 9 awakening among stakeholders to the human and financial cost of opioid abuse in workers comp. The quicker payers are already moving from "oh my it's a big problem" to "here's the plan to fix it."

10 It's about time. The damage caused by rampant over-prescribing of opioids is immeasurable. Devastated families, dead claimants, rising insurance premiums, increased crime, completely unnecessary disability and higher costs for employers and taxpayers are the result. Identification of claimants at high risk for addiction and treatment of those individuals must - must be a priority. Intelligent payers will stop ignoring the problem or hoping it will go away, and work to a) prevent more overuse and b) help those already addicted/dependent to get healthy. 5. Now that Illinois is starting to approve Preferred Provider Programs, there will be lots of interest followed by disappointment that they really don't do much to control over-utilization. I know, this is a gimme. The good folk at the Illinois Department of Insurance have been forced to come up with regulations to implement legislation that is about as convoluted as it could possibly be. Unfortunately, claimants who are interested in gaming the system will use the loopholes in the PPP system to get what they want when they want it from the providers they want to get it from. The PPP will only really work for claimants who weren't interested in gaming the system. Unfortunately the PPP isn't much of a solution. 6. As work comp premiums begin to rise, we're going to see a renewed interest in loss control, risk management, and medical management. With rate increases coming in California, Florida, and Massachusetts (among other states), employers are going to have to dust off those yellowed risk management plans, recall the basics of loss prevention, and perhaps rehire the loss control pros they laid off over the last few years when their services weren't 'needed'. Look for the big consulting houses, and smaller boutique firms, to emphasize their loss control expertise and capabilities; mono-line (and heavily-workcomp-focused) carriers will also tout their knowledge and ability to help employers control comp program costs. 7. The physician dispensing cost control bill currently pending in Florida will pass. After several years of political intrigue, huge campaign contributions from companies making enormous profits from physician dispensing, and continual efforts by good actors in the system, outraged taxpayers and employers will finally succeed in limiting reimbursement for drugs dispensed by docs to the original underlying price of the non-repackaged drug. I hope. And so should you. That won't' be the end of the issue; Maryland, South Carolina, and other states are also battling to limit this latest and greatest abuse of the comp system. Even if we win in Florida, there will be many more battles ahead. 8. More payers will diversify their provider network partners. As Aetna winds up its work comp network operation, payers' interest in exploring other network options will increase. Following the lead of Broadspire and ESIS and enabled by technology that makes it easier than ever to mix and match provider networks, we'll see several other large payers award more network business to more network companies. Expect firms such as Anthem, HFN, Horizon, Cofinity, Rockport and Prime to gain share. That doesn't mean anyone should count Coventry out. They are the oldest, largest, and most entrenched, and are working hard to address network gaps that will arise when their relationship with Aetna finally ends (which is still a long way away). 10

11 9. York Claims will finish the year well on its way to becoming a top-tier TPA. Through savvy deal-making, a pretty intelligent sales approach, and what is by several accounts a strong focus on doing the right thing for the employer (and not just generating fees for York), York has transformed itself from what was a not-very-good TPA a decade ago to a well-regarded and very well run organization. York's robust technology and strong market share in key sectors (especially governmental entities in several states), coupled with the expertise they've added as a result of acquisition (I'm especially impressed with the JI Companies deal) bodes well for their future. Perhaps I should modify the headline - York already is a top tier TPA in terms of capabilities; these capabilities will drive them towards the top tier in terms of revenue and market share. 10. Oklahoma will eliminate the requirement that all employers have workers comp insurance. There are moves afoot in several states to reconsider the work comp mandate, but none have more traction than the one in OK. Whether it's because they share a long border with the only state that doesn't require comp (Texas), many of their larger employers also have big operations in Texas and like the opt-out there, or there's something more ephemeral, a sense that work comp as currently constructed doesn't work the way it should anymore, Oklahoma may well be the next state to allow employers to opt out. There's already a study group authorized by the State Senate that's looking into the feasibility of the change; their findings should be released in the next few weeks. That will be just in time for the next legislative session which starts in February. This may not become law in 2012, but I'd expect some movement that allows some employers to opt out, perhaps in a pilot program as early as next year. Well, there we have it. Oh, there's one more My annual April Fool's post will generate some controversy, tick off a few people, and generally cause consternation among those who either don't have a sense of humor or can't read a calendar. It will also not get me in as much hot water as some others because I have to vet it through my PR department... Joseph Paduda is a nationally recognized expert, speaker, media source and author on managed care in group health and in workers compensation. He translates complex data into actionable knowledge and is able to take an aerial view or to drill down into intricate niches. His practical approach and 20 plus years experience in the field give clients precise direction and applicable programs. He writes the popular weblog Managed Care Matters attracting more than 1500 unique visitors a day and a good deal of comment in the health care world. His blogs are frequently republished on other sites. Mr. Paduda also conducts industry surveys, including focused on managing pharmacy costs within workers compensation, bill review in workers comp, and work comp claims systems. Prior to founding Health Strategy Associates in 1997, Mr. Paduda served in sales, marketing and management positions with managed care and insurance companies, including MetraComp, a United Health Care Company, Travelers Health Company, Liberty Mutual and American International Healthcare/AIG. A frequent speaker and prolific author, Mr. Paduda has appeared on ABC s Nightline, Fox Business News, AirAmerica, and NPR and been featured in The New York Times, LA Times, TheStreet.com and many industry publications. Editor s Note: Joe Paduda s predictions fail to mention one critical prediction for We predict that Joe Paduda will appear at the 2012 NWCI Educational Conference in August as a keynote Speaker. Watch for the complete program and registration materials coming soon. Do not miss the chance to hear this speaker! Mark Your Calendars NOW! WCEC 2012, August 19-22, Marriott World Center, Orlando 11 WCEC 2013, August 18-21, Marriott World Center, Orlando WCEC 2014, August 17-20, Marriott World Center, Orlando

12 FWCI Hall of Fame Inducts Joseph A. Keene Joseph A. Keene initiated his career by attending the University of Massachusetts in the early 1960 s and going into the pizza business there until mid At that point he went into food management with Howard Johnsons and McDonalds until late 1967 when he was offered a job with Liberty Mutual as an adjuster trainee. Joe was an adjuster with Liberty through the early days of no fault and stayed there until 1972 when he relocated to Florida. Joe Keene then went to work as a Resident Senior Adjuster for the Insurance Company of North America and handled all lines of insurance including workers comp. In 1976 Joe was offered a Claim Supervisor position with Crum & Forster at which time he interacted with most of the members of the Workers Compensation Hall of Fame. In late 1977 Joe went to work for Frank B. Hall as a Claim Supervisor and was promoted to Vice President of Claims. Joe then filed a program for the Kentucky AGC and the Virginia Municipal League self insurance funds. In 1981 he was hired to initiate a claims department for the Florida Roofers Association where he stayed until 1985 when he was asked to do the same thing for Combined Risk Insurance Management (CRIMS). In 1989 Joe went into business for himself and formed Claims Capabilities, Inc. (CCI), handling self insurance funds and insurance companies. Joe also consulted for many attorneys and insurance companies, specializing in the Florida Special Disability Trust Fund. Joe continued in this business until 1998, when he came to work for FCCI as Executive Vice President of Claims, where he remains at present. Joe holds an adjuster, general agent and surplus lines licenses for the state of Florida, and multiple licenses for other states. His activities over the last 25 years include speaking at the annual Work Comp Convention for ten years specializing on the topic of the Special Disability Trust Fund. Joe Keene was a member of the Florida Association of Self Insured s legislative committee and worked closely with GW Jacobs. Joe was also on the State Second Injury Advisory Council Board from its inception until it was disbanded in He also was a founding member and initial treasurer of WCCP from Joe s philosophy on claims has been early investigation and early conclusion of exposures. It is his belief that because of rising medical costs in our NWCI General Chair Jim McConnaughhay, Joseph Keene, and NWCI Program Chair and Hall of Fame President Steve Rissman at the Hall of Fame Inductions, January 13, society that worker comp cases should be concluded as early as possible. Joe s largest love in the claim area would be the catastrophic cases. He developed wellness settlements for catastrophic cases in the 1980 s. Joe believes that catastrophic claims must be handled proactively by adjusters with specialized knowledge and experience. Joe has worked with some of the largest reinsurance companies in the world, and his specialty has been consultation in the catastrophic claims area. Nonetheless, at the end of the day, Joe Keene is basically an adjuster that loves his profession. 12

13 FWCI TV Returns at WCEC 2012! Based on the overwhelming success of FWCI-TV at the last two Workers Compensation Educational Conferences, FWCI-TV returns again in You can be a part of the action. FWCI-TV will feature daily video headlines that highlight the events at the conference. By investing in a 60-second interview, your message will be delivered to conference attendees, as well as, FWCI s database, a targeted industry audience. Your company s message will become part of the daily newscast, and it will be distributed in the following ways: ed directly to the FWCI Database Played on televisions in hotel guest rooms Posted to the FWCI website Posted on the FWCI Facebook page Posted on You Tube Played in both Corporate Theaters Played on video screens in conference shuttle busses DVD of your company interview or advertorial presented by FWCI-TV daily news broadcast to be used as a marketing tool Contact Cathy Bowman for more information about FWCI-TV and other sponsorships, or (850) To see an interview from the 2010 conference click this link to a video posted on FWCI s website Thanks to the 2011 Multistate Committee Members! 13

14 WCEC 2011 Multistate Program Robert D. Stokes, Esq. of Flahive, Ogden & Latson, Austin TX explaining important TX workers' compensation tips in the TX Multi-State Breakout room. James Anderson, Esq. of Anderson, Crawley and Burke, PLLC Ridgeland, MS discussing recent workers' compensation developments during the Multi-State Breakout luncheon. Mark Davis, Esq. of McAngus, Goudelock & Courie, LLC Charleston, SC in celebrity costume as game show host for "Workers' Compensation Jeopardy" at the Multi-State Closing session. 14

15 Determining Medicare By: Mark Popolizio, Esquire Status Assessing CMS Query Process System in the Bigger Picture of MSP Compliance Determining a claimant s Medicare status is an integral part in evaluating one s compliance obligations under the Medicare Secondary Payer Statute (MSP). When a claimant is identified as a Medicare beneficiary, several MSP compliance considerations come into play: MMSEA Section 111 reporting (Medicare s new electronic reporting law), conditional payment reimbursement and Medicare Set-Asides. As part of this exercise, the important question of just how a claimant s Medicare status will be determined must be addressed. One such method currently being used by a large segment of the claims industry is Query Process. This system was introduced by the Centers for Medicare and Medicaid Services (CMS) in relation to Section 111. Query Process was designed to provide an expedient and coordinated process to ascertain a claimant s Medicare status to help determine Section 111 reporting obligations. While Query Process is certainly a useful tool, the system s utility in assessing MSP obligations outside of the Section 111 context must be carefully considered. In this regard, understanding the type of information Query Process provides, and does not provide, is important to ensure that proper MSP protocols are in place as part of claims handling and settling practices. This article highlights how Query Process works and examines the system s function, utility and limitations in the bigger picture of MSP compliance. What is CMS Query Process and how does it operate? CMS introduced Query Process as part of its implementation of Section 111. By way of brief background, under Section 111 certain entities known as Responsible Reporting Entities (RREs) 1 are required to (i) determine a claimant s Medicare beneficiary status and (ii) report claims involving Medicare beneficiaries to CMS if the claim meets a Section 111 reporting trigger. The penalty for non-compliance is steep: $1,000 per day, per claim. While Section 111 imposes a statutory duty on RREs to determine Medicare status, the statute does not provide a specific system to be utilized. In response, CMS established a voluntary electronic Query Process system to assist RREs make this determination. Under Query Process, an RRE may submit an unlimited number of query requests once a month to determine a claimant s Medicare beneficiary status. Only an RRE (or its registered Section 111 reporting agent) are permitted access to the Query Process system. A query response file is returned to the RRE within 14 calendar days. Certain RREs may also have access to a new online query feature called Beneficiary Lookup which provides an immediate response to a query request. Access to this new feature is not available to all RREs, and eligible RREs are limited to only 100 query requests per RRE identification number per calendar month. 2 In order to utilize Query Process, the claimant s social security number (SSN) or health identification claim number (HICN) is required. In addition, the RRE must submit the first initial of the claimant s first name, the first six characters of the claimant s last name, and the claimant s birth date and gender. CMS system must find an exact match of the submitted SSN or HICN. Thereafter, at least three out of the four remaining informational elements must yield an exact match. 3 If the queried claimant is identified as a Medicare beneficiary, a response is returned indicating that the claimant was matched to a beneficiary in CMS data base. Due to privacy concerns, the 15 system does not provide the actual date of Medicare entitlement and enrollment, or the basis of the

16 claimant s entitlement. With this information, the RRE then assesses whether the claim meets a reporting trigger thereby requiring it to be reported under Section 111. Conversely, if the queried claimant is not identified as a Medicare beneficiary, a response is returned indicating that the claimant was not matched to a beneficiary. In certain circumstances, the RRE will need to re-query the claimant to determine if Section 111 reporting may be required at some subsequent point during the claim. What information does Query Process provide, and not provide, and how is this important in the bigger picture of MSP compliance? With a basic understanding of how Query Process works under our belts, the focus shifts to analyzing the nature and utility of the information provided. This involves assessing the type of information Query Process provides (and does not provide) in relation to the bigger picture of MSP compliance. As noted above, if the claimant is identified as a Medicare beneficiary, Query Process returns a response simply indicating that the queried individual has been matched to a beneficiary in CMS data base. No other information is provided. With respect to Section 111, this limited information is adequate as positive identification of Medicare beneficiary status alone is sufficient to determine reporting obligations. In this sense, Query Process is precisely calibrated to deliver a very limited, but key, informational element for Section 111 purposes. However, in moving away from Section 111 the question becomes how helpful is this limited information in evaluating the issues of conditional payment reimbursement and Medicare set-asides (MSAs)? With respect to conditional payments, the fact that Query Process identifies a claimant as a Medicare beneficiary is helpful in that it alerts the RRE to the possibility of a conditional payment issue. However, Query Process does not provide any information regarding conditional payments; nor does it trigger the process for the parties to receive this information. For that matter, Section 111 reporting, with limited exception, also will not provide the parties with this information. Thus, RREs need to ensure that separate compliance protocols are in place to procure conditional payment information. On this point, it is generally prudent practice to begin this process once the claimant is identified as a Medicare beneficiary, regardless of whether the claim is technically reportable under Section 111 at the time this determination is made. This is so because obtaining conditional payment information involves a separate multi-step process which takes time. Under this process the RRE (or the claimant) must put the Coordination of Benefits Contractor (COBC) on notice of the claim and provide this contractor with certain identifying information related to the case and claimant. This notice is independent of Section 111 reporting and is provided via phone, fax or mail. Once COBC receives this notice, it in turn notifies another contactor, the Medicare Secondary Payer Recovery Contractor (MSPRC). The MSPRC then issues a Rights and Responsibilities Letter (RRL) advising the parties of Medicare s potential interests. Thereafter, the MSPRC will issue a Conditional Payment Letter (CPL) within 65 days of the date of the RRL (in practice this timeline can be longer than 65 days). The CPL contains Medicare s claimed conditional payment amount and provides a corresponding listing of the claimed charges. The CPL must be examined for accuracy and a request should be made to the MSPRC to remove any inappropriate claims. It is often necessary to request updated CPLs as the claim matures to ensure that the most current conditional payment information is obtained. Under current CMS policy, the parties are generally unable to obtain Medicare s final demand until after the claim is settled and the executed settlement document is forwarded to the MSPRC. 4 16

17 As it can take several months to obtain this information, starting the process early allows the RRE time to obtain the relevant information. Furthermore, addressing this issue during the course of the claim allows the RRE adequate time to review Medicare s claimed conditional payment amount and, if necessary, seek removal of inappropriate claims. Incorporating these practices as part of claims handling will aid the RRE in obtaining a more realistic exposure assessment which, in turn, helps properly set reserves, evaluate case value, and optimize settlement prospects. On the MSA front, the utility of the information provided by Query Process is also a mixed bag. When Query Process identifies the claimant as a Medicare beneficiary, this indeed provides the RRE with a valuable piece of information for MSA evaluation purposes which should be appropriately noted. Armed with this information, the RRE can then determine the appropriateness of a MSA. In the workers compensation (WC) context, this involves making sure that claims handlers have firm knowledge of CMS WC-MSA review thresholds. Per current CMS policy, a WC-MSA is deemed appropriate if at the time of the WC settlement the claimant is a Medicare beneficiary and the total settlement amount 5 is greater than $25,000. However, it is important to remember that a MSA may also be considered appropriate in situations where the claimant is not a Medicare beneficiary. For example, under CMS WC-MSA review thresholds a MSA is deemed appropriate in situations where the claimant is not a Medicare beneficiary but has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the total settlement amount is greater than $250,000. CMS defines reasonable expectation of Medicare enrollment to include situations in which the claimant (a) has applied for social security disability (SSD); (b) has been denied SSD but anticipates appealing that decision; (c) is in the process of appealing or re-filing for SSD; (d) is 62.5 years or older; or (e) has End Stage Renal Disease but does not yet qualify for Medicare based upon this condition. 6 The question then becomes: Does Query Process provide any of the information necessary to determine if a claimant who is not Medicare beneficiary has a reasonable expectation of Medicare enrollment for MSA purposes as that term is defined by CMS? The answer is NO. Thus, RREs cannot rely solely on Query Process to provide the information needed to determine MSA applicability in all instances. Accordingly, RREs need to set protocols to obtain the information necessary to determine if a claimant has a reasonable expectation of Medicare enrollment for MSA purposes when such determination is applicable. These efforts should center on obtaining best evidence to demonstrate due diligence in protecting Medicare s interests. In this respect, CMS definitional factors call for a multi-faceted approach. Some measures for consideration include: confirming the claimant s social security status directly with the social security administration; determining how best to ascertain and affirm claimant intentions regarding whether he or she anticipates appealing an adverse social security ruling (when applicable); and using other necessary discovery measures to ensure that all areas of relevant inquiry are addressed. Conclusion Query Process certainly provides RREs with a powerful tool to obtain a major informational element necessary to determine MSP compliance obligations. In assessing Query Process, it is important to keep in mind that the system was designed to help RREs meet a very specific and limited compliance requirement in the Section 111 context. The system was not intended to provide, nor does it provide, the necessary information to address all MSP compliance areas. Accordingly, as discussed above, RREs need to have proper compliance protocols in place to obtain the information that Query Process does not provide to ensure that all MSP compliance obligations are being fully addressed. About the Author Mark Popolizio, Esquire is Section 111 Senior Legal Counsel for Crowe Paradis Services Corporation. Mark is a nationally recognized authority in MSP compliance. He has authored numerous articles on MSP issues including MMSEA Section 111, MSAs and conditional payments. Mark is a regularly featured presenter at national seminars and other industry events. Prior to dedicating his practice to MSP compliance in 2006, Mark practiced workers compensation and liability insurance defense for ten years representing carriers, employers, third party administrators and self insureds. Mark is based out of Miami, Florida and can be reached at or (786)

18 Endnotes 1 RRE determination is fact and situational specific in accordance with CMS RRE directives. Under CMS directives, there are a number of potential entities that could be RREs for Section 111 purposes. While a detailed discussion of CMS RRE directives is beyond the scope this article, in general RREs typically include, but are not limited to, carriers and self-insureds. It is important to note that claimants and their lawyers are not RREs under the Section 111 reporting law. To review CMS RRE directives, see CMS NGHP User Guide (December 16, 2011, Version 3.3), Chapter 7 and any subsequent Alerts that the agency has released or releases. 2 This article provides only a general overview of how the Query Process system operates. A detailed examination of the technical aspects of the Query Process s (e.g. required software, file types, etc.) is beyond the scope of this article. To review this information see CMS NGHP User Guide (December 16, 2011, Version 3.3), Chapters 13 and CMS states that the query process is to be used only for Section 111 reporting purposes and refers the RRE to the Section 111 Data Use Agreement for restrictions on the use of the data exchanged for Section 111 purposes. See, CMS NGHP User Guide (December 16, 2011, Version 3.3), Chapters 13.1 and As an exception to the above process, CMS will issue a Conditional Payment Notice (CPN), in lieu of a CPL, in situations where (a) the MSPRC is notified of a settlement, judgment, award or other payment through Section 111 reporting rather than from the beneficiary or their representative and (b) the MSPRC has been alerted to a settlement, judgment award, or other payment by the beneficiary or their representative before the usual CPL has been issued. On a related note, some RREs are reporting that they have received CPLs which they believe were triggered from their filing of a Section 111 ORM report (on-going responsibility for medicals). To the extent these reports are accurate this would represent a change from CMS current process, and may signal an eventual coordination between Section 111 reporting and CMS larger efforts at benefit coordination. In the author s view, further investigation into these interesting reports is in order. As part of this investigation, an important fact to ascertain would be whether the RRE, in addition to filing a Section 111 ORM report, had also reported the claim to the COBC. If so, the issue for determination would then become whether it was the Section 111 filing or the COBC report that triggered release of the CPL. To learn more about CMS processes to obtain conditional payment information, the reader may wish to review the website 5 CMS defines total settlement amount as follows: Total settlement amount includes, but is not limited to, wages, attorney fees, all future medical expenses (including prescription drugs) and repayment of any Medicare conditional payments. Payout totals for all annuities to fund the above expenses should be used rather than cost or present value of any annuities. Also note that any previously settled portion of the WC claim must be included in computing the total settlement. Gerald Walters, CMS Memorandum to All Regional Administrators, April 25, Thomas L. Grissom, CMS Memorandum to All Regional Administrators, April 22, THE NATIONAL WORKERS COMPENSATION INSTITUTE WILL PRESENT THE 67TH ANNUAL WORKERS' COMPENSATION EDUCATIONAL CONFERENCE & 24TH ANNUAL SAFETY AND HEALTH CONFERENCE August 19-22,

19 WCEC 2011 Multistate Program Audience members watching/listening/partic ipating in the "Workers' Compensation Jeopardy" program Kyle Kinney, Esq of Miller, Christie, & Kinney, P.C, Birmingham AL makes a point during the General Opening Session. R. Briggs Peery, Esq. of Swift Currie McGhee & Hiers, LLP Atlanta GA introduces the speakers at the Multi-State opening session. 19

20 FWCI Hall of Fame Inducts Honorable John Lazzara The Honorable John J. Lazzara is Judge of Compensation Claims (JCC) for the Tallahassee District, being first appointed in Prior to his appointment, he was in the private practice of law in Tampa and acted as a circuit civil mediator and federal court arbitrator. He also worked under contract as a Hearing Officer for the Hillsborough County Environmental Protection Commission; the Property Appraisal Adjustment Board; and a Panel Arbitrator on the first New Motor Vehicle Arbitration (Lemon Law) Board. Judge Lazzara served as President, Conference of JCCs ( ); Chair, Florida Bar Workers Compensation Rules Committee ( ); Member, Appellate Court Rules Committee ( ), twice chairing its Workers Compensation Law Subcommittee; Chair, DOAH/OJCC Workers Compensation Rules Revision Committee ( ); and is currently a member of the Florida Bar's the Standing Committee on Professionalism, the Workers' Compensation Section and its Professional Conduct Guidelines Committee, and the Alternative Dispute Resolution Section. In 1998 and 2002 Judge Lazzara was nominated for appointment to the First District Court of Appeal. In November, 2005, Governor Jeb Bush appointed him Interim Deputy Chief Judge, a position he held until May, In 2008, the judge was elected Inaugural President of the National Association of Workers Compensation Judiciary, and currently serves on its Board of Directors. In 2009, Judge Lazzara was inducted as a Fellow of the ABA-affiliated College of Workers Compensation Lawyers and was recently elected to its Board of Governors ( ). He frequently lectures on workers compensation matters, and volunteers and sits on the Boards of Directors of the Literacy Volunteers of Leon County and the Epilepsy Association of the Big Bend. Judge Lazzara received his B.A. and J.D. degrees from the University of Florida. Thanks to the 2011 Safety Program Committee Abe Agront, Jr. Carmen Calderon Richard Lavery Gary Porter Donald Ames Kevin Dodson C. Gary Lopez Diane Ray Cathy Anton G. Scott Dotson Henry Losada Michael A. Reali Gary Archer Randy Free David J. Martens Claude Revels Margaret Baumann Raymond Harbison Diana McCluskey Rene Salazar Sharon Bramlett Kenia Harrell Dr. James McCluskey Virginia Sablet Todd Brouette Joan Haynes Bob Nesbit Bill Shooter Charles Brush Linda Horner Hana Osman Ryland Thompson Daniel Byrne Scott Johnson Margie Perry Thomas Truncale Charles Williams 20

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