Synopsis: If It Smells Like Politics, Tastes Like Politics and Feels Like Politics, It Probably Is Politics—IL WC System Gets a New Arbitrator.

Editor’s comment: Exactly ten months to the date of the next gubernatorial election, Governor Quinn surprisingly appoints a complete unknown to be an IL WC Arbitrator. On January 7, 2014, the IWCC announced Jessica Hagerty’s appointment to take a position as a workers compensation hearing officer.

Jessica who, you might ask? Newly appointed Arbitrator Hegarty is a licensed IL lawyer and appears to be a very good one. She has worked as a successful Plaintiff Attorney for a number of years. However, to our understanding she has never handled a workers’ compensation claim. Ms. Hegarty joined the Hegarty & Hegarty Plaintiff personal injury firm in 2004. Prior to working as a Plaintiff personal injury lawyer, she spent nearly four years at the Cook County State’s Attorney’s Office handling criminal cases. The Hegarty & Hegarty website indicates Ms. Hegarty generated millions in settlements and verdicts for injured persons and their families. What the law firm website doesn’t mention is anything to do with workers’ comp.

So how did Ms Hegarty get the nod to become a workers’ comp hearing officer? Well, it appears her hubby is Terrence Hegarty of the same firm. Mr. Hegarty is a big hitter Plaintiff lawyer who is a past president of the Illinois State Bar Assn. His website describes him as “one of the most … feared personal injury attorneys in Illinois.” His website also describes him as a “personal injury titan.”

It is no secret that powerful Plaintiff attorneys commonly donate generously to major Democratic campaigns. You must remember as well that Governor Quinn stripped out the civil service protections afforded IL WC Arbitrators during his past administrations. Arbitrators now basically serve solely at the Governor’s whim. This major job opening wasn’t posted on the IWCC or CMS website. As you read this, IL Arbitrator candidates don’t have to take a WC class, you don’t have to pass a competitive Arbitrator’s test anymore; you don’t have to know anything about the system. Candidates need only be licensed attorneys to qualify. Therefore, Governor Quinn is free to appoint virtually any licensed attorney in the State to this post.

While we would typically prefer to see a veteran workers’ compensation attorney fill such a vacancy, we cannot forget that until recently, Arbitrators were not even required to be attorneys at all! Anyone could be appointed to the post. In our view, the appointment of a veteran attorney is far preferable to a non-lawyer. We only hope that Ms. Hegarty brings the requisite impartiality to her position and sheds any Plaintiff/Petitioner-oriented tendencies of her former practice. Only time will tell; we will continue to watch and report.

On a related note, former Arbitrator Steve Mathis is now Commissioner Mathis. We congratulate him and wish him well in the new post.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Update on Medicaid Provisions in recent legislation….forewarned is forearmed! Analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: Recently passed Federal budget legislation included several provisions with regard to Medicaid which are likely to have some relevance for our readers and clients. HJ.Res.59 passed Congress and was signed by the President on December 26th and includes:

Three important changes to Section 202 with regard to Medicaid third-party liability law (which affirms Medicaid’s position as payer of last resort) with three changes to be effective October 1, 2014.

There is an amendment to section 1902(a)(25)(E) which will allow a state to delay payment for prenatal and preventive pediatric care for 90 days after the date the provider initially submitted a claim to the third party payer, if the state determines doing so is cost-effective and will not adversely affect access to care.
An amendment to section 1902(a)(25)(F) will allow a state to delay payment for 90 days for services where child support enforcement is being carried out. The state could continue to make payment within 30 days, if it found that to be cost-effective and necessary to ensure access to care. (This modifies mandatory exceptions to the requirement that State Medicaid agencies reject medical claims when another entity is legally liable to pay the claim.)
There are also changes to sections 1902(a)(25), 1912 and 1917 which gives states the ability to recover costs from the full amount of a beneficiary’s liability settlement, instead of only the portion of the settlement designated for medical expenses, and it establishes an option for states to place liens against Medicaid beneficiaries’ liability settlements. In our view, this is a big deal—they have access to the entire settlement now to recover.

Section 1201 provides for a temporary extension of the Qualifying Individual (QI) Program which will now extend the QI program through March 31, 2014 and allocates $200 million for that period. (This program helps pay Medicare Part B premiums for certain low-income beneficiaries.)

Section 1202 provides a temporary extension of Transitional Medical Assistance (TMA) which extends section 1925 TMA through March 31, 2014. TMA provides continued medical coverage for certain families who become ineligible for medical assistance because of increased earnings.

For the extension of QI and TMA, Congress will need to act to continue them beyond March 31st.

Section 1204 makes two changes to Medicaid Disproportionate Share Hospital (DSH) payments by delaying Affordable Care Act DSH reductions for two years. (DSH reductions were to have gone into effect on October 1, 2013; instead, the legislation delays the reductions until October 1, 2015). However it also doubles the reduction which would otherwise have applied. The legislation also creates another special rule for calculating DSH allotments in FY 2023 which will match the statute which spells out special rules for calculating the FY 2021 and FY 2022 allotments.

The full text of the legislation can be found here: http://beta.congress.gov/113/bills/hjres59eah3/BILLS-113hjres59eah3.pdf

This article was researched and written by Shawn R . Biery J.D., MSCC and he can be reached at 312-756-3701 or sbiery@keefe-law.com. Both Shawn and Matt Ignoffo at mignoffo@keefe-law.com are certified MSA consultants in our office who are prepared to field any questions you may have.

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Synopsis: No Medicare Set Aside Money for Undocumented Immigrant per Oklahoma Court—Similar Legal Approach Would Apply to IL, IN, WI and MI. Analysis by Matthew Ignoffo, J.D., M.S.C.C.

Editor’s Comment: The facts in the case of Ramos v. Becco Contractors, Inc. involve an accepted ankle injury of Jose Ramos. Ramos eventually sought benefits for permanent total disability and in doing so included a nine-digit number in the blank for his Social Security number on a form. The parties eventually reached an agreement where the employer, Becco, would pay Ramos $125,000.00 and:

[I]n addition, the [Employer] agrees to fund [a] [Medicare Set Aside] in the amount of $12,361.18. In the event the [Medicare Set Aside] as approved by [the Centers for Medicare and Medicaid Services, hereinafter CMS] exceeds this amount, the Claimant agrees to provide additional funding from the settlement proceeds.

At a hearing to approve the settlement Ramos testified through an interpreter his understanding of the MSA issue and duty to pay for future treatment from such funds. The trial court approved the settlement on June 1, 2009. Ramos subsequently became a naturalized U.S. citizen on December 18, 2011.

The employer paid the principal amount of $125,000.00, but refused to fund the Medicare Set Aside or pay the amount to Ramos because upon submission of the Medicare Set Aside to CMS, as it was discovered Ramos was not Medicare eligible. The number reported by Ramos as his Social Security number was only a taxpayer identification number and Ramos was not Medicare eligible until he became a naturalized citizen in December 2011.

Becco argued because Ramos misrepresented his status as a holder of a valid Social Security number and was ineligible for Medicare benefits at the time he filed his claim and at the time of settlement, the provision of the settlement agreement calling for funding of a Medicare Set Aside was unenforceable on account of Ramos’ misrepresentation of Social Security and Medicare eligibility.

The trial court held the MSA provision of the settlement agreement was unenforceable noting the incorrect social security number was a material misrepresentation of fact by Ramos and the employer was relieved of any requirement to fund the MSA or pay the equivalent sum to Ramos.

On appeal Ramos argued he did not appreciate the requirements for Medicare eligibility and the parties were mistaken in this regard with there being no intentional misrepresentation on his part. The Appellate Court sustained the order of the trial court noting the parties settled the case based upon what appears to be, at best, a mutual misapprehension of Ramos’ eligibility for Medicare benefits. However, at the hearing on approval of the settlement agreement, Ramos acknowledged his understanding:

(1) the Medicare Set Aside provision would be submitted to CMS for approval, and

(2) he would not receive the payment of the Medicare Set Aside funds unless or until CMS approved.

Due to the fact Ramos agreed the Medicare Set Aside would not be paid without CMS' approval, and CMS' approval of the Medicare Set Aside provision was not obtained, the Court held Ramos may not now complain of the employer’s failure to pay the Medicare Set Aside.

Essentially the court found a condition precedent, CMS approval, and because this condition was not met the MSA did not need to be funded. Without such language it is possible the employer would have had to fund the MSA, or pay the additional money directly to Claimant, even though Claimant was not eligible for Medicare at the time of settlement.

We can take away two main points from this case. First, we recommend the proper investigation into a Claimant’s eligibility for Medicare be performed prior to settlement. Second, the settlement agreement language used is always crucial and especially so when MSAs are involved. A thought we had when reading this case is the situation in which the carrier or employer agrees to keep medical open until the approval of the MSA by CMS. If such language was included in the settlement contract language here it appears Ramos would be entitled to continued medical treatment indefinitely because the MSA was never approved by CMS. The attorneys at KCBA deal with these issues on a daily basis and are more than happy to assist you with your MSA and settlement questions.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at 312-756-3729 ormignoffo@keefe-law.com. Both Matt and Shawn R. Biery at sbiery@keefe-law.com are certified MSA consultants in our office who are prepared to field any questions you may have on a 24/7/365 basis.

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Synopsis: IL Appellate Court Justice Patrick J. Quinn, rest in peace.

Editor’s comment: We are sad to report the second most senior justice in the First District Illinois Appellate Court died last week in his chambers. Justice Patrick J. Quinn, 60, was found unresponsive inside his chambers. Quinn was elected to the Appellate Court in 1996. He was a member of several committees, including the district's executive committee.

The condolences and prayers from the defense team at Keefe, Campbell, Biery & Associates goes out to his family and friends.

KCBA Blog

1-13-14; If It Smells Like Politics--IL WC Gets a New Arbitrator; Shawn Biery, JD with a Medicare Update; Important Medicare Ruling with National Implications from Matt Ignoffo, JD and more