H&W Webinar on Medicare Advantage Plan Recovery
Next month, we are pleased to offer you the opportunity to attend our free webinar on Medicare Advantage Plan Recovery (a.k.a. MAP Recovery), hosted by our partnerNicole Graci. Medicare Advantage Plan (MAP) recovery is the next wave of Medicare Secondary Payer recovery efforts against primary payers, such as workers’ compensation carriers and self-insured employers. The presentation will review the basics of MAP recovery and best practices for addressing MAP reimbursement requests.
Please click here to register for the webinar. The webinar is scheduled to take place Thursday, February 23 at 1:00pm.
Appellate Division Decision Creates Challenges for Carriers Seeking to Admit Video Evidence
Maffei v. Russin Lumber Corp., decided 1/19/17, has created potential pitfalls for carriers seeking to introduce video surveillance as evidence. The decision holds that video surveillance must be produced and entered into evidence at the time of an expedited hearing, even if submission of the video was raised for the first time at that expedited hearing. Additional language in the decision may support an argument for extension of this rule to cases outside of the expedited hearing process.We invite you to review our full analysis of the Maffei decision on our website.
Briefly, here are the practical claim handling and litigation implications from theMaffei decision:
1. Carriers must carefully scrutinize hearing notices to determine whether the Board has invoked WCL §25(3)(d) for an expedited hearing. This will be clearly stated on the hearing notice. If the hearing is expedited and there is any potential for testimony from the claimant on activities where video surveillance is present, the video must be provided to defense counsel, along with enough DVD copies in WMV or AVI format (See,Board Subject Number 046-237), so that a copy of the DVD can be provided to the WCLJ and claimant’s counsel at the conclusion of testimony.
2. Claim handlers will need to communicate with defense counsel to flag the video surveillance or other evidence as something that may need to be introduced into evidence at the hearing without adjournment, to ensure that the important portions of the video or other evidence are not overlooked.
3. Carriers will need to ensure that the investigator who shot the video, or the custodian of the video (if taken from security cameras or other fixed location cameras) is present at the expedited hearing to testify about the authenticity of the video footage in case the claimant challenges the admissibility or authenticity of the footage. For documentary evidence, a witness who can testify to the authenticity of the documents will be needed.
4. Because some language in the court’s decision potentially allows for application of this harsh rule to non-expedited cases, claim handlers should contact defense counsel as soon as possible to determine an appropriate strategy any time a non-expedited hearing is scheduled for claimant testimony. Defense counsel will need to be able to review video or other documentary evidence to determine whether it may be needed at the hearing. Counsel will also be able to assist with subpoenaing any necessary witnesses to establish a foundation for admissibility of the video or documents at issue at the hearing.
It remains to be seen how the Board and the claimants' bar will use this decision. Until application of this case is clarified by further Board or court decisions, caution and protective preparation are advisable.
Court Affirms Board Refusal to Reopen PPD Case But Rescinds Penalty Assessed Against Carrier
In Andrews v. Combined Life Insurance, decided 1/19/17, the Appellate Division affirmed the Board’s denial of a carrier’s application to reopen a claimant’s permanent partial disability claim to address attachment to the labor market where the claimant failed to respond to inquiries about his efforts to find employment and rejected the carrier’s offer of a vocational assessment.
Where the Board denies a reopening, the standard of review of that decision at the Appellate Division is not one of “substantial evidence” but whether the Board abused its discretion in denying the reopening. The Board has stated in many prior Board Panel decisions that a claimant’s rejection of job search assistance or rehabilitative services could be sufficient to reopen a previously closed permanent partial disability claim.
Relying on these prior decisions, the carrier inAndrews thought that its offer to the claimant of a vocational rehabilitation assessment and the claimant’s refusal to accept that offer was sufficient evidence upon which to request a reopening. The Board disagreed, noting that the carrier’s offer of a vocational assessment which “may” result in the development of a vocational plan and “may include” counseling, job training, and assistance in returning to work was not actually an offer of job search assistance or rehabilitative services sufficient to meet the Board standard. Adding insult to injury, the Board assessed the carrier a $500 penalty under WCL §114-a(3) for requesting the reopening.
The Appellate Division affirmed the Board’s decision denying reopening—finding no abuse of discretion—but rescinded the penalty, agreeing with the carrier’s position that the Board is obligated to assess the evidence submitted and may not assess a penalty merely because it decides that the evidence is insufficient.
The Court’s decision may be legally correct in finding no abuse of discretion but it ignores the underlying fact that the claimant had no interest ineven talking to someone about the possibility of returning to the labor market. We question how the courts can continue to insist that partially disabled claimants maintain an attachment to the labor market while at the same time allowing the Board to set an overly high burden for carriers to meet in requesting reopening of cases to review whether claimants are meeting their obligations to maintain that attachment.
In light ofAndrews, we would recommend that carriers and their vocational rehabilitation vendors carefully review their correspondence to claimants to make sure, where applicable, that there is a clear offer of vocational assistance should the carrier wish to rely on that correspondence and a claimant’s response to same in requesting a reopening of a closed PPD case.
Hamberger & Weiss - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
Hamberger & Weiss - Rochester Office
1 South Washington Street
Rochester, NY 14614