Representative John Tanner, of Tennessee’s 8th Congressional District, recently reintroduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2009. The bill has been assigned HR 2641. The bill is a reintroduction of HR 2549 from the 110th Congress with important modifications that were made to assure that the legislation is revenue neutral in impact. The primary changes include:

1) reduced the threshold provision below which WC settlement agreements would be exempt from $250,000 to $25,000 or less, so as to more closely mirror the current CMS guideline below which WCMSA’s are not to be submitted for review;

2) Added a cap on the "safe harbor" provision permitting the payment of 10% of the settlement to Medicare as an option to meet set-aside requirements to limit the option to cases involving settlements not to exceed $250,000 in value; and

3) Extended the number of days within which HHS would be required to provide notice of Medicare conditional payments owed from 60 to 90 days.

Ex parte Travis C. Aderhold (In re: Massey Chevrolet, Inc. v. Travis C. Aderhold):

On May 22, 2009, the Alabama Supreme Court denied a petition for writ of certiorari filed by the employee as a result of the Alabama Court of Civil Appeals decision in Massey Chevrolet, Inc. v. Travis C. Aderhold. The prior opinion was previously reported in this blawg on January 23, 2009.  As a short recap, the authorized treating physician referred the employee to two different pain management doctors. One was supposed to handle pain management and the other was simply supposed to perform a procedure. When the procedure doctor tried to perform other treatment not dictated by the authorized treating physician, the employer denied it. the employee sought relief from the trial judge and the judge ordered that the procedure doctor be considered an authorized treating physician. The Court of Civil Appeals ruled that the procedure doctor was not an authorized treating physician because the employee was sent to him for a "limited purpose." Interestingly, the Court of Civil Appeals did consider the other pain management doctor to be an authorized treating physician because the employee had been referred to him for on going medical care.

Although the Supreme Court denied the petition with no opinion, Justice Murdock issued a special concurring opinion in which he asserted that he agreed with the result but disagreed that the doctor providing on going pain management should be considered an authorized treating physician. According to Justice Murdock, only the initial treating physician was the true authorized treating physician.

Brown v. Cassens Transport Co., et al., 546 F.3d 347 (6^th Cir. 2008)(NO. 05-2089):

A short summary of this case was previously provided in this blawg on October 29^th. At that time, the 6^th Circuit Court of Appeals had reversed the District Court’s decision to dismiss RICO claims against the employer, third party administrator, and alleged "cut off" doctors. Specifically, the plaintiffs alleged that the defendants deliberately selected and paid unqualified doctors to give fraudulent medical opinions that would support the denial of workers’ compensation benefits, and that the defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of 18 U.S.C. §§ 1341, 1343.

Since the time of my last blawg report, the 6^th Circuit, on January 5, 2009, denied a Rehearing and a Rehearing En Banc request made by the defendants. As a result, a Petition for Certiorari to the U.S. Supreme Court was filed on May 6, 2009. Of interest, the application makes the following points:

I will continue to monitor the progress of this Petition and keep you posted.

In a March advisory opinion, the Philadelphia Bar Association stated that it is unethical to gain access to a witness’ social networking web site by using a "friend" not affiliated with the litigation. Since Facebook and MySpace require an invitation and/or permission before access is granted, they are different from other types of sites that provide unhindered access to the general public. By not telling the witness the real reason that access is requested, it is concealment and thus unethical.

My Two Cents: Although this issue has not yet been addressed in Alabama, I would expect the same result. Even without a formal ethics opinion in place, a trial judge would likely frown on an attorney or his clients gaining access to this type of information by concealment.

Walmart Stores, Inc v. Marilyn Orr:

In re: Randall Paul v. Sunbelt Transport: